Madras High Court
K.M. Madhavakrishnan vs S.R. Swami And Another on 21 March, 1995
Equivalent citations: AIR1995MAD318, (1995)IIMLJ127
Author: A. R. Lakshmanan
Bench: A.R. Lakshmanan
ORDER A. R. Lakshmanan, J.
1. This case has a chequered history. Both parties are in Court fighting their litigation tooth and nail from the year 1968 onwards. On the first round of litigation, the suit O.S. No. 71 of 1968 on the file of the Subordinate Judge, Erode, initiated by the appellant herein and her mother, ended in dismissal and Appeal No. 928 of 1975 filed by the appellant herein in this Court was also dismissed by a Division Bench of this Court on 5-2-1980 (K. M. Madhavakrishnan v. S. R. Swami, (1980) 2 Mad LJ 398). Being aggrieved by the judgment of the Division Bench, the unsuccessful plaintiff K. M. Madhavakrishnan filed Civil Appeal No. 1368 of 1980 before the Supreme Court. The same was also dismissed by the Supreme Court on 9-11-1983 under Ex. A.22. The first round of litigation was given a quietus by the judgment of the Supreme Court on 9-11-1983.
2. The said suit O.S. No. 71 of 1968 was filed by one Paramayammal, mother of the appellant herein, for a declaration that the agreement of sale executed by her in favour of defendants 1 and 2 therein, who are the respondents herein, was void and inoperative and for an injunction restraining the respondents herein from enforcing or making use of the same. The said agreement was also filed along with the plaint and marked as Ex.A.13 in that suit. Paramayammal contended that the agreement in question was not genuine and not enforceable and that the recitals regarding consideration found in the agreement for sale were false and that she was induced to put her signature on the representation that the same was required for securing possession from the tenants. According to her, she did not enter into any agreement of sale at all and the document was not intended to be acted upon as genuine document to sell the property in favour of the respondents herein. Her principal contention in [he said suit was, that the suit agreement is vitiated by fraud, undue influence and illegality and on that ground she sought for a declaration that the sale agreement is void and inoperative.
3. The suit property consists of 4.04 acres of land comprised in T.S. No. 1332 in Erode Town. The same was allotted to the share of Paramayammal in the suit O.S. No. III of 1954 on the file of the Subordinate Judge, Coimbatore, filed for partition by the appellant herein. Pursuant to the interim final decree passed on 19-11-1954 in that suit, Paramayammal took possession of the suit property, which was leased to third parties, and the tenants were in possession at the time when the suit agreement was executed. According to the respondents herein, Paramayammal agreed to sell the suit property under the agreement dated 17-6-1967 to them for a consideration of Rs. 1,90,000/- within a period of six months from that date and also agreed to give vacant possession of the lands after evicting the tenants. It was further agreed that if Paramayammal was unable to evict the tenants within a period of six months from 17-6-1967, she will sell the property within a period of three months from the time she got possession from the tenants. A sum of Rs. 10,011/- was received as advance and it was agreed that the balance of Rs. 1,79,989/-is payable at the time of executing the sale deed. An option was given to the respondents herein to purchase the property even if the tenants were not vacated or to have the agreement cancelled. The agreement also enabled the respondents herein to transfer the agreement to third parties and that the vendor Paramayammal also agreed to sell the property to the plaintiffs or their nominees.
4. When the tenants of Paramayammal fell into arrears, she filed O.S. No. 155 of 1967 on the file of the Subordinate Judge, Erode, for recovery of arrears of rent. Subsequent to the institution of the said suit, at the instance of Paramayammal, the respondents herein paid the tenants a sum of Rs. 15,000/- on 19-3-1968 and obtained possession of the suit property. On the same day, Ex. A-8 notice was issued to Paratnayammal intimating her of the fact of taking possession from the tenants and informing her of the respondents' willingness and readiness to pay the balance of sale price and take the sale deed on a day fixed by her. Coming to know of the above fact, the appellant herein and one Venugopal, the stepson of Paramayammal, induced her to postpone the receiving of the notice so as to enable them to find a way out to avoid the agreement. Thereupon, they caused a publication in their names in Malai Murasu newspaper on 20-3-1968 under Ex.B-28. The notice Ex.A-8 dated 19-3-1968 sent by the respondents herein was received by Paramayammal on 23-3-I96S as per Ex.A-9. The respondents herein also caused a publication in the same daily Malai Murasu under Ex.A-10 dated 22-3-1968 furnishing the full details of the agreement, Ex.A-4 executed by Paramayammal. Paramayammal did not send any reply to Ex.A-8 notice but filed O.S. No. 71 of 1968 on 2-4-1968 in the Sub Court, Erode, against the respondents herein and the tenants for a declaration that the agreement dated 17-6-1967 executed by her in favour of the respondents herein is void and inoperative and for consequential injunction. Ex.A-16 is the copy of the plaint in that suit.
5. The respondents herein also filed O.S. No. 83 of 1968 on the file of the Sub Court, Erode, for specific performance of the agreement Ex.A-4 dated 17-6-1967 executed by Paramayammal in their favour. Paramayammal died pending the suit and defendants 2 to 11 were brought on record as her legal representatives. However, they have no claim over the property because deceased Paramayammal, who died on 5-4-1971, executed a Will on 18-2-1971 under Ex.A-12 bequeathing the entire right, title and interest of her in the suit property in favour of the appellant herein. Among the respondents, the 2nd respondent herein was originally impleaded as 2nd plaintiff and he had given up his rights in favour of the 1st respondent herein under Ex.A-15 dated 2-2-1972. The plaint was amended in February, 1984 claiming rights in favour of the 1st respondent herein only. .
6. As stated already, the respondents herein filed the present suit O.S. No. 33 of 1968 on 10-4-1968 for specific performance expressing their readiness and willingness to pay the balance of sale price of Rs. 1,79,989/-and take the sale deed from Paramayammal. The respondents herein denied all the averments made by Paramayammal in her suit O.S. No. 71 of 1968 and sought for enforcement of the agreement, seeking direction to the defendants to execute the sale deed after receiving the balance of sale consideration.
7. Paramayammal as 1st defendant filed a written statement raising the same contentions as raised in the suit O.S. No. 71 of 1968. The following are her main defence to the suit:
(a) The suit agreement is vitiated by undue influence and fraud.
(b) The consideration recited in the agreement is inadequate.
(c) The enforcement of the agreement will place the respondents herein with unfair advantage over Paramayammal and therefore, the equitable relief of specific performance should not be granted to the respondents herein.
8. Both the suits were posted for joint trial. At that time, the appellant herein filed LA. No. 338 of 1975 in O.S. No. 33 of 1968 under S. 10 of the Code of Civil Procedure to stay the suit till the disposal of O.S. No. 71 of 1968. The respondents herein requested for joint trial of both the suits but the learned Subordinate Judge stayed the proceedings in O.S. No. 83 of 1968 and proceeded with O.S. No. 71 of 1968. After an elaborate trial, O.S. No. 71 of 1968 was dismissed by the learned Subordinate Judge holding that the suit agreement dated 17-6-1967 is valid and operative. Aggrieved by the said decision, the appellant herein filed A.S. No. 928 of 1975 on the file of this Court. This Court by judgment and decree dated 5-2-1980 (1980) 2 Mad LJ
398), confirmed the findings of the trial court that the suit agreement is not vitiated by undue influence, fraud or other infirmities put forward by the owner of the property and that the same is neither liable to be declared as void nor liable to be set aside, but granted a decree for possession. The Division Bench consisting of S. Natarajan, J., as he then was. and S. Padmanabhan, J., granted a decree for possession on the basis that the possession of the suit property by the respondents herein is pursuant to the agreement for sale. The judgment and decree in A.S. No. 928 of 1975 have been marked as Exs.A-20 and A-21 in this suit. The appellant herein, not being satisfied with the judgment of the Division Bench, filed Civil Appeal No. 1368 of 1980 before the Supreme Court and the same was dismissed on 9-11-1983. Ex.A-22 is the copy of the order of the Supreme Court in Civil Appeal No. 1368 of 1990, which reads thus:
"Heard counsel.
This appeal has been filed by the appellant against a finding recorded by the Courts below against him, though ultimately suit has been dismissed in the appellant's favour. Such an appeal is not maintainable, it is therefore, dismissed.
The observations in the last paragraph of the High Court's judgment protects the rights of the parties in the suit for specific performance, which is pending in the Sub Court, Erode.
In view of the dismissal of the appeal, the revocation petition becomes infructuous and it is therefore dismissed.
New Delhi, (Sd.) xxxxx J.
November 9, 1983. (Sd.) R. S. Pathak. J.
(Sd.) Subyasachi
Mukharji, J."
9. After the dismissal of Civil Appeal No. 1368 of 1980, the present suit O.S. No. 83 of 1968 was taken up for trial during 1984. since the said suit was stayed by the Supreme Court pending the proceedings before it.
10. During the pendency of the proceedings, the 2nd respondent herein assigned his right in favour of the 1st respondent herein under a registered assignment deed dated 2-2-1972 under Ex.A-15, The respondents herein filed I. A. No. 79 of 1984 for amendment of the plaint seeking execution of the sale deed in favour of the 1st respondent herein alone. The amendment was ordered on 1-2-1984. Thereupon, the appellant herein filed an additional written statement on 9-2-1984 mainly contending that the 2nd respondent was never ready and willing to take the sale deed and that he was not possessed of sufficient funds to purchase the suit property contributing his half share. According to the additional written statement, the readiness and willingness should be by both the respondents and as one of the respondents is not ready and willing to perform his part of the contract, the agreement cannot be enforced by the other respondent. It is also stated in the additional written statement that the respondents are bound to plead and also prove that they were ready and willing to comply with their part of the contract from the date of the agreement up to the date of hearing of the suit and even up to the date of the decree in the suit. It is further contended that the trial of the suit had commenced on 24-1-1984, on which date PW 1 was examined in part and it is only thereafter, the 2nd respondent herein came forward with the application on 30-1-1984 to amend the plaint in pursuance of the agreement dated 2-2-1972. It is also pointed out that the 2nd respondent, who was examined as PW 3 in the suit, has admitted that ever since 2-2-1972 up to the date of hearing, he was not ready and willing to comply with the terms of the contract and therefore, as per law, irrespective of other contentions raised by the defendants, it has to be held that the respondents herein were not ready and willing to perform their part of the agreement from the date of the agreement up to the date of the decree in the suit.
11. On 1-8-1974, defendants 4 and 6 filed a separate additional written statement stating that they are not necessary parties to the suit since they are not interested in the subject matter of the agreement in favour of the respondents herein, on which the suit is filed. They also admitted the execution of the Will by Paramayammal, which was registered and which came into force on her death, bequeathing the suit property and all claims and rights therein to the appellant herein.
12. The trial court framed the necessary issues. On the side of the respondents herein, PWs 1 to 5 were examined and Exs. A-1 to A-62 were marked. On the side of the appellant herein, DWs 1 to 3 were examined and Exs.B-1 to B-64 were marked. The learned Subordinate Judge, after an elaborate consideration of the evidence, both oral and documentary, by judgment dated 14-2-1984, decreed the suit for specific performance. It is also not out of place to mention that the 1st respondent has deposited the entire balance consideration of Rs. 1,79,989/- in the trial court on 2-3-1984. Aggrieved by the judgment and decree of the Court below, the 3rd defendant has preferred the above appeal questioning the legality of the decree for specific performance.
13. Elaborate arguments were advanced by Mr. G. Subramaniam, learned senior counsel, on behalf of the appellant; 3rd defendant and Mr. T. R. Rajagopalan, learned senior counsel, on behalf of the respondents/ plaintiffs.
14. In this appeal, the following points have been urged by Mr. G. Subramaniam. According to him, the appellant is entitled to urge the contention about the void nature of the agreement despite the findings of the Division Bench in (1980) 2 Mad LJ 398. The learned senior counsel did not want to make any concession. However, he canvassed the correctness of the earlier finding by relying upon some paragraphs in the Division Bench judgment. Serious contentions were raised by him on the following points:
(a) The suit agreement is vitiated by undue influence and fraud.
(b) The suit agreement is not enforceable by reason of novation of the suit agreement.
(c) The respondents herein are never ready and willing to perform their part of the contract and had not satisfied the requirements of S. 16(c) of the Specific Relief Act.
(d) The respondents by their own conduct had disentitled themselves from seeking the equitable relief of .specific performance,
(e) The agreement cannot be enforced in view of the provisions of the Land Reforms Act.
15. As far as the case of undue influence and fraud is concerned, it is useful to refer to the findings of the learned Subordinate Judge in O.S. No. 71 of 1968, who categorically found that the suit agreement was not vitiated by fraud or undue influence, which finding was confirmed in A.S. No. 928 of 1975 by a Division Bench of this Court. In view of the observations found in the last para of the above judgment, the parties were allowed to adduce fresh evidence on all the issues. The learned Subordinate Judge, after an elaborate consideration of the evidence, again upheld the validity of the agreement on facts and in law. Even though Mr. G. Subramaniam, learned senior counsel for the appellant submitted that the suit agreement is vitiated by undue influence and fraud, he was not in a position to dislodge the finding given by the Court below. Further, a Division Bench of this Court had categorically found that the agreement is true and valid and is not vitiated by undue influence and fraud. As rightly pointed out by Mr. T. R. Rajagopalan, the appellant who was present in Court throughout the trial of the present suit, had not gone into the box to establish the case of undue influence and fraud. It is pointed out from the evidence that the 1st respondent and the appellant are friends and college-mates, which is clear from the evidence of PW 1.
16. Before proceeding further to deal with the contentions raised by Mr. G. Subramaniam, it is beneficial and also useful to refer to the various findings recorded by the Division Bench in (1980) 2 Mad LJ 398, which, in our view, have a direct bearing and impact in the present appeal. In paragraph 16 of the judgment, the Bench has held as follows :--
"In the circumstances, we are unable to sustain the content ion of Mr. G, Ramaswami, that Ex.A-13 agreement for sale is void and inoperative on the ground that the document was not read over to the deceased 1st plaintiff, that she was not aware of the nature and contents of the document and that she merely acted on the representation of the 2nd defendant."
17. The same contention has been raised in the present suit as well. The trial court framed Issue No. 2 to resolve the contention raised by the parties and after elaborate discussion, came to the conclusion in paragraph 15 of its judgment that the suit agreement Ex.A-4 is valid and operative.
18. In paragraph 21 of the judgment, the Division Bench held as follows: --
"The fact that the 2nd defendant admitted that he had written certain diaries and entered the amounts received by the deceased 1st plaintiff and expenses incurred by her in the diaries cannot be sufficient to hold that the 2nd defendant was holding a real or apparent authority over the deceased 1st plaintiff to draw a presumption that the 2nd defendant was in a position to dominate the will of the deceased 1st plaintiff."
In the present suit, the contention raised in this regard has been decided by the lower court in paragraph 16 while dealing with Issue No. 3.
19. In paragraph 22 of the judgment, the Bench has observed as follows:--
"We are therefore not convinced that at the time the deceased 1st plaintiff entered into Ex.A-13 agreement for sale her mental capacity was so affected or impaired by reason of age, illness or mental or bodily distress as to compel us to draw a presumption that 2nd defendant was in a position to dominate the Will of the deceased 1 st plaintiff."
20. Paragraph 23 of the Bench decision relates to the price fixed for the property in question viz., Issue No. 2. The Bench held as follows:--
"We therefore agree with the finding of the trial Court that the sale consideration fixed under Ex.A-13 was fair and reasonable."
In paragraph 24, the Bench has held as follows:--
"Even it it is assumed that the consideration fixed under Ex.A-13 is inadequate, mere inadequacy of consideration will not be sufficient to set aside the bargain arrived at between two parties."
21. In paragraph 27, the Bench has observed as follows:--
"We have already found that the consideration fixed under Ex.A-13 agreement for sale was fair and reasonable. Even assuming without finding, that the consideration does not arithmetically represent the correct market value of the property as on that date, in the light of the decisions referred to above, the said assumed inadequacy of consideration cannot at all vitiate the contract. We therefore overrule the contention of Mr. G. Rama-swami, that Ex.A-13 transaction is unconscionable and liable to be set aside."
In the present judgment in O.S. No. 83 of 1968, the learned Subordinate Judge in paragraph 31 of his judgment has also considered the adequacy of the consideration for the property in dispute.
22. In paragraph 28, the Bench has observed as follows:
"We have therefore no hesitation in accepting the evidence of DWs 3 and 4 as regards the fact that the deceased 1st plaintiff freely and voluntarily executed Ex.A-13 in favour of defendants 1 and 2 and that she received an advance of Rs. 10,011/- under the agreement for sale."
Likewise, in paragraph 29 the Bench has observed as follows :--
"Therefore, the failure of the plaintiffs to examine Mr. Arjunan goes a long way to negative the case of the plaintiffs that Ex.A-13 was the result of undue influence and fraud exercised by defendants 1 and 2 on the deceased 1st plaintiff."
In the last few lines of paragraph 30, the Bench has observed as follows: -
"Even if it is assumed that they would have been aware of the intended publication of Ex.B-37 notice by the son and step-son of the deceased 1st plaintiff, there was nothing unnatural in their attempting to make their position secure by taking possession of the property from defendants 3 and 4 in view of the admitted threat held out by the son and step son of the deceased 1st plaintiff. In the circumstances, we repel the contention of Mr. G. Ramaswami that the simultaneous publication of Ex.B-37 and the execution of Ex.B-21 possession receipt would be evidence of undue influence and fraud exercised by defendants 1 and 2 on the deceased 1st plaintiff."
Issue No. 5 in the present suit relates to the same point. The learned Subordinate Judge has elaborately dealt with this issue in paragraph 28 of his judgment.
23. In paragraph 37, the Bench has observed as follows:--
"In this case, admittedly, defendants 1 and 2 were not put in possession of the property in pursuance of the contract of transfer ......
However, such act of putting the transferee in possession of the property either actually or constructively must be in pursuance to the terms of the agreement for sale. Further, the very plea of defendants 1 and 2 is not that they were put in possession either actually or constructively under the agreement for sale. It is not even their case that under Ex. A-13 they were asked to take possession of the property from the tenants. On the other hand, it is their definite case that nine months after the agreement for sa!e, since the deceased 1st plaintiff was not in a position to evict the tenants, she empowered defendants 1 and 2 to pay money to defendants 3 and 4 and take possession of the property. Accordingly, acting under the instruction of the deceased 1st plaintiff they paid Rs. 15,000/- and took possession of the property from the lessees in part performance of the agreement for sale. This certainly amounts to a novation of the original agreement for sale, as rightly pointed out by Mr. G. Ramaswami. Taking of possession under such a subsequent oral agreement will definitely not attract the applicability of S. 53-A of the Transfer of Property Act. When once there has been a variation or modification of the original written agreement for sale, the written contract would cease to be a contract which would bind the parties and the contract has to be taken along with the subsequent variation. There being no written contract that would bind the parties, to the written contract authorising defendants 1 and 2 to take possession of the property from defendants 3 and 4, S. 53-A of the Transfer of Property Act, would not be attracted."
24. In paragraph 40 of the judgment, the Division Bench has observed as follows:--
"As rightly pointed out by the trial court there is absolutely no evidence to prove that the deceased 1st plaintiff authorised defendants 1 and 2 to pay a sum of Rs. 15,000/-to defendants 3 and 4 and take possession from them as she found it difficult to evict defendants 3 and 4 from the suit property. But the trial court has erroneously found that the act of defendants 1 and 2 in taking possession of the property from defendants 3 and 4 could only be considered to be pursuant to the agreement Ex.A-13. For reasons already discussed, we are of the view that the trial Court fell into an error in coming to that conclusion. When once we find that the possession of defendants I and 2 cannot be traced to Ex.A-13 agreement for sale, they cannot resist the claim of the appellant to recover possession of the property on the foot of his title. It is well known that under Sec. 54 of the Transfer of Property Act an agreement for sale does not create any interest in or charge on such property in favour of the transferee."
25. We are unable to accept the argument of Mr. G. Subramaniam, learned senior counsel for the appellant, that the suit agreement is vitiated by undue influence and fraud for this reason. The trial court after elaborate consideration of the evidence let in by the parties in this suit, found that the suit agreement is valid and enforceable. The lower court held that Paramayammal voluntarily executed the agreement, that the consideration for the transaction was reasonable and that the agreement is not vitiated by undue influence or fraud. The respondents, in order to substantiate their case that the consideration fixed under the suit agreement Ex.A-4 was reasonable and not inadequate as contended by the appellant, filed the sale deeds Exs.A-33 and A-57 to A-60. In addition, they have also filed the wealth tax and agricultural income-tax assessment orders of the appellant viz., Exs.A-45 to A-51. In order to show that Paramayammal was attending to her matters on her own, the respondents filed Exs.A-23, and A-26 to A-32, which are affidavits and counter statements filed by Paramayammal in Civil Courts and land revenue proceedings with the help of her advocate Mr. R. Arjunan. We have perused the same. The above documents disclose that she had independent legal advise in all the matters. In fact, the Division Bench, on the earlier occasion, had drawn an adverse inference against the defendants for not examining Mr. R. Arjunan, Advocate of Paramayammal, who was instrumental for preparing the suit agreement. The trial court also dealt with this point in paragraphs 13 and 14 of its judgment. The trial court has pointed out the various circumstances in regard to the inability of Paramayammal to evict the tenants and the necessity to sell the property was also proved by various circumstances as pointed out by the trial court and also by the Division Bench in the earlier proceedings. The case of the appellant that the 2nd respondent was in a position to dominate the mind of Paramayammal is not at all established as per the finding of the lower court at paragraph 16 of its judgment. In the above circumstances, we are unable to countenance the contention of Mr. G. Subramaniam that the suit agreement is vitiated by undue influence and fraud and therefore, we reject the said contention.
26. According to Mr. G. Subramaniam, learned senior counsel for the appellant, the suit agreement is varied and therefore, the same is not enforceable. It is his contention that the respondents herein had pleaded that they paid a sum of Rs. 15,000/ - to the tenants and got possession in part performance of the contract and by such a contention, they varied the contract by claiming adjustment of Rs. 15,000/- from the payment of the balance consideration. It is relevant to note that the respondents have been repeatedly offering to pay the balance by their notice prior to the suit and also when the suit was instituted on 10-4-1968. Mr. T. R. Rajagopalan, in this context, invited our attention to the relief clause in the plaint wherein the respondents herein have offered to pay the balance consideration of Rs. 1,79,989/- after deducting the advance of Rs. 10,011/- paid at the time of execution of the agreement. In fact, even in the chief-examination, the respondents had not sought deduction of Rs. 15,000/- paid to the tenants. Mr. G. Subramaniam's argument was mainiy based upon the cross-examination of PW 1/Ist respondent herein. (Vide page 247 of the typed set of documents). We have carefully perused the evidence. In fact, PW 1 has categorically stated that he has not deducted the sum of Rs. 15,000/- paid to the tenants while filing the suit for specific performance -- vide PW 1's evidence at page 248 of the typed set of documents.
27. Mr. G. Subramaniam contended that the readiness and willingness is a matter of statutory requirement under S. 16(c) of the Specific Relief Act. According to him, significantly, there is no material to show that the respondents had the wherewithal. In the plaint there is a statement that both the respondents are ready and willing. In the evidence, it is admitted that the 2nd respondent never had the wherewithal since he only contend in the execution as a working partner (vernacular matter omitted). According to Mr. G. Subramaniam, Ex.A-15 demonstrates that the 2nd respondent was never ready and willing and as the matter stands, the 1st respondent also has not shown the wherewithal. He would submit that the evidence of PW 5, Manager of a local indi-geneous banker, is not sufficient to prove the wherewithal when PW 1 himself admits that the accounts produced by him do not show that he had the facility at any particular point of time to generate Rs. 1.80 lakhs.
28. This apart, according to Mr. G. Subramaniam, the stamp duty at 14% of the total consideration also has to be provided and that except exhibiting some account books relating to business, there is no material to show the wherewithal of the 1st respondent. The documents produced are not at all sufficient to prove the capacity of the 1st respondent to pay the sale consideration. He further contended that the 1st respondent has not placed any material before Court to show as to what steps he took to evict the en-croachers. But, according to the evidence of PW 1, there are number of hutmen at the instance of third parties and that there is no evidence to show whether they have been evicted at all.
29. Commenting upon the argument of Mr. T. R. Rajagopalan that the respondents are willing to pay the entire balance of Rs. 1.80 lakhs, Mr. G. Subramaniam submitted that the mere statement in the plaint is of no consequence, though in law, the respondents need not produce or tender any proof. There must be evidence to show the readiness and willingness. According to Mr. G. Subramaniam, this has been pointed out in the ruling reported in V. V. Rethinasabapathi Filial v. T. R. Sriramulu Chettiar (1986) 99 Mad LW 239. It is further contended that the burden of proof is always on the plaintiff and it never shifts as per the ruling reported in Bengal Coal Co. Ltd. v. Prosanna Kumar Bhattacharjee (AIR 1952 Cal 39) wherein the Calcutta High Court has held as follows:--
"The onus is upon the plaintiffs to prove the specific case set up by them in their plaint. They cannot after failing to discharge that onus fall back on a partial admission made by the defendants in their written statement and claim that the onus is shifted from them to the defendants."
The non-production of income-tax assessment orders showing that the 1st respondent has the wherewithal to pay the balance of consideration, would, according to Mr. G. Subramaniam, go to show that the 1st respondent is not ready and willing to perform his part of the obligation.
30. On the question of variation, after pointing out the language of S. 16(b) and (c) of the Specific Relief Act, Mr. G. Subramaniam, invited our attention to the evidence of PW 1 on this point and submitted that the variation need not necessarily be in writing or expressed but can be inferred from the conduct. He also cited the ruling reported in S. Sankaran v. N. G. Radhakrishnan (1994-2 Mad LW 642) where it is held that in a suit for specific performance, the plaintiff must establish readiness and willingness in terms thereof and not in variation thereof.
31. Section 62 of the Contract Act has no application, in our view, to the facts of the case. For application of the said section, both parties should agree to substitute a new contract or to rescind or alter it. It is nobody's case that a new contract was substituted in the place of the original contract. On the other hand, the respondents stick to the suit agreement Ex. A-4 and claim relief only in accordance with the terms of the suit agreement. In the circumstances, we are of the view, that there is no novation of the suit agreement at all. Further, neither the 1st defendant/ Paramayammal nor the 3rd defendant/ appellant/ Madhavakrishnan, who filed an additional written statement after the commencement of [he trial, has pleaded novation. No evidence also has been let in to prove novation of the suit agreement. However, the appellant all along has been taking the stand that the suit agreement is not enforceable. When no plea of novation is raised, we are of the view, that the appellant cannot be allowed to raise such a plea at the stage of appeal.
32. In support of the above contention, Mr. G. Subramaniam, relied on two decisions reported in Sahida Bibi v. Golam Muhammad (AIR 1983 Cal 216) and S. Sankaran v. N. G. Radhakrishnan (1994-2 Mad LW 642). The facts mentioned in both these cases disclose that the plaintiffs therein came forward with an entirely different terms of contract from the original contract. Therefore, the Courts have expressed in those cases that the agreement for which readiness and willingness was pleaded, must be the agreement that is sought to be implemented and in terms thereof, and when the plaintiff wants an implementation of contract with modification, he cannot claim to have always been ready and willing to perform his part of the contract. Therefore, the Courts in the above decisions held that the plaintiff who comes out seeking specific relief of agreement with an entirely new terms is not entitled to a decree.
33. In the present case, the parties have agreed that the tenants should be evicted and possession handed over to the 1st respondent. Therefore, taking of possession from the tenants to secure their position will not have the effect of variation of the contract. There is also no alteration of the rights, liabilities or legal position of the parties by such taking possession. It is for us now to see whether the respondents have satisfied the requirements of S. 16(c) of the Specific Relief Act in full.
34. The conduct of the respondents right from the date of the agreement shows that they are ready and willing to perform their part of the agreement. They issued Ex.A-8 notice expressing their readiness and willingness to perform their part of the agreement, which is followed by Ex.A-10 publication in the Malai Muradu newspaper. There was no reply to Ex.A-8 hut Paramayammal filed O.S. No. 71 of 1968 questioning the validity of the agreement on the ground of undue influence and fraud. It will be seen that the respondents herein filed the suit on 10-4-1968, i.e., within twenty days after Ex.A-8, expressing their readiness and willingness to perform their part of the contract. Even though the respondents have specifically pleaded their readiness and willingness to pay the balance before the Registrar and bear the registration expenses thereon, the appellant had not disputed the said fact in the written statement.
35. Pointing out paragraph 10 of the written statement of the 1st defendant/ Paramayammal, Mr. T. R. Rajagopalan said that Paramayammal has only stated that readiness and willingness will not arise and the claim of the respondents cannot be sustained in view of the alleged invalidity of the agreement. Further, in paragraph !4 of the written statement, regarding the means of the respondents, the case of Paramayammal was that the 1st respondent's name is associated with the 2nd respondent solely for the purpose of giving a colour of plausible means. Neither the 1st defendant Paramayammal nor the 3rd defendant/appellant ever disputed the means of the 1 st respondent. In our view, the 1st respondent has produced sufficient evidence to show that he has got Commission Mundy and money lending business apart from owning a cinema theatre at Erode. Exs.A-1 to A-3 filed on the side of the respondents will substantiate the said plea. The 1st respondent has also examined himself as a witness. The main contention of Mr. G. Subramaniam, as already stated, was that both the respondents should be ready and willing to perform their part of the contract. But, he was unable to substantiate the above contention by any legal pronouncement or rulings of our High Court or other High Courts. In this context, it is very useful to refer to the agreement Ex.A-4 dated 17-6-1967 which itself provides for transfer of the agreement by parties 2 and 3 therein, who are the respondents herein, in favour of third parties and that the party of the first part viz., Paramayammal shall execute the sale deed either to parties 2 and 3 therein or their nominee on receipt of sale consideration. It is crystal clear from the above that there is no prohibit ion of one plaintiff assigning his right in favour of the other plaintiff or their nominees. As far as the defendants are concerned , the means of any one of the plaintiffs once established will satisfy the requirement of law. The defendants have not let in any evidence to show that the 1st respondent has no means to purchase the property. Tn fact, as already mentioned, the 1st respondent, immediately after the decree, has deposited the entire balance of consideration to the credit of the suit. The appellant, who is a friend ot the 1st respondent, had avoided the witness box even though he was present throughout the trial. Adverse inference, therefore, will have to be drawn against the appellant in this regard. Therefore, we are unable to agree with the contention of Mr. G. Subramaniam, that the 1st respondent alone cannot enforce the agreement. In the present case, both the agreement holders (respondents herein) joined together and filed the suit. The 2nd respondent had assigned his right to the 1st respondent. In the circumstances of the case, we do not propose to deal with the cases cited by Mr. G. Subramaniam since those cases have no application to the facts of the present case. The conclusion of ours in this judgment is purely based upon the pleadings and the evidence let in by both parties.
36. On the question of conduct, Mr. G. Subramaniam contended by referring to page 102 of the typed set of documents that the conduct of the respondents in setting up the theory of authorisation by Paramayannnal to pay Rs. 15,000/- to the tenants is untrue, which finding has been affirmed by the Division Bench. Again, he invited our attention to paragraph 40 of the judgment of the Division Bench in (1980) 2 Mad U 398, wherein the Bench has held that there is absolutely no evidence to show that deceased Paramayammal authorised the responents herein to pay a sum of Rs. 15,000/- to defendants 3 and 4 and take possession from them, etc. Pointing out the rulings reported in 1937, Mad WN 1158 and Ramaswami Gounder v. K. M. Venkatachalam (1976 (1) Mad U 243), Mr. G. Subramaniam submitted that the falsehood of the case put forward by the 1st respondent herein clearly disentitles him from obtaining the discretionary relief of specific performance. He also submitted that the ruling in the above matters has been followed in V.R. Rathinasabapathi Pillai v. T. R. Sriramulu Chettiar (1986) Mad LW 239) and recently in Nallaya Gounder v. P. Ramaswami Gounder (AIR 1993 Mad 275).
37. We are unable to appreciate this contention of Mr. G. Subramaniam that the respondents by their own conduct had disentitled themselves from seeking the equitable relief of specific performance. This contention, in our view, is unsustainable. The same is mainly based upon the evidence of P.W. 1 at page 247 of the typed set of documents. The contention of the respondents was that they took possession of the suit property pursuant to the request made by Parliament, by paying Rs. 15,000/- to the tenants -- vide Ex. A-6 dated 19-3-1968. The trial Court had dealt with this aspect in paragraph 28 of its judgment. In fact, the Division Bench in (1980) 2 Mad LJ 398, had categorically found in paragraph 30 that there is nothing unnatural in the plaintiffs attempt to make their position clear by taking possession of the property from the tenants in view of the admitted threat held out by the son and step-son of deceased Paramayammal.
38. Mr. G. Subramaniam laid stress on the findings of the trial court in O.S. No. 71 of 1968, which is at page 119 of the typed set of documents. The contention of the appellant was that the evidence of the 1st respondent that Parayammal agreed to deduct a sum of Rs. 15,000/- from the balance of sale price is untrue and is found accordingly by the learned Subordinate Judge and therefore, they are not entitled to seek the equitable relief. As pointed out already, the respondents have not sought to deduct the sum of Rs. 15,000/- at any point of time. In fact, in the plaint itself filed on 10-4-1968, they have come forward to pay the entire balance of sale consideration of Rs. 1,79,989/- and take the sale deed. In the circumstances, the decision cited by the learned counsel for the appellant viz., (1993) I Mad LW 84 has, in our opinion, no application to the facts of this case. In that case, the Court found that the plaintiffs had come to Court with unclean hands. In the present case, the respondents herein had not sought for deduction of Rs. 15,000/- and filed the suit agreeing to pay the balance of sale consideration of Rs. 1,79,989/-. Therefore, we are of the view, that the respondents have shown their readiness and willingness right from inception of the agreement and never acted against the terms of the agreement. On the other hand, as pointed out by Mr. T.R. Rajagopalan, the stand of Paramayammal in O.S. No. 71 of 1968 and in the present suit, and also the stand of the appellant herein clearly show that under some pretext or other wanted the agreement to be made unenforceable. The very fact that the appellant had not gone into the box to prove his case clearly shows that his claim is not bona fide. In the circumstances, equity is only in favour of the respondents and therefore, the 1 st respondent is entitled to the decree for specific performance.
39. Even though the fairness of the price was concluded by the earlier Division Bench judgment, Mr. G. Subramaniam contended that the question of grant of equitable relief of specific performance has got to be seriously considered by us. According to him, a paltry sum of Rs. 10,011/- was paid by way of advance and that all through the respondents have never moved the trial court for trial of the suit and they have been only delaying and subsequently, the old lady herself has been fighting the litigation. However, since the decree for specific performance fs against deceased Parama\ammal and at present her heirs, if it is granted, it will be grossly inequitbale. The respondents have taken possession of the property as early as 19-3-1968 and that they have been enjoying the property. This contention of Mr. G. Subramaniam is also liable to be rejected. Increase in price of properties cannot be a ground for refusing the decree for specifc performance. The parties are not responsible for the law's delays. The respondents have denied that they have enjoyed the property. Once the fairness of price is concluded by the earlier Division Bench judgment of this Court, which was later on confirmed by the Apex Court, it is not at all open to the learned Senior Counsel for the appellant to raise this contention once over again. Hence, we reject this contention as well.
40. Mr. G. Subramaniam's last contention is based upon the notice under Section 10(1) of the Land Reforms Act dated 20-5-1966 marked as Ex.B-1 issued by the Authorised Officer, Land Reforms, Coimbatore. According to him, the suit property was included in the holdings of Paramayammal and her other properties were declared as surplus -- vide the proceedings of the Authorised Officer dated 26-10-1966 marked as Ex. A-32. It is only after the above proceedings, Paramayammal entered into the suit agreement under Ex. A-4. Therefore, Mr. G. Subramaniam contended that the suit agreement is hit by the provisions of the Land Reforms Act and therefore unenforceable. We are unable to accept this contention also. Therefore, the same is rejected.
41. Viewed from any angle, we are of the view, that the judgment and decree of the trial court require to be confirmed in all respects. Therefore, we direct the appellant Madhava-krishnan to execute the sale deed in respect of the suit property in favour of the 1st respondent S.R. Swami or his nominee or nominees within two months from the date of receipt of a copy of the judgment from this Court failing which the Sub Court, Erode, shall execute the sale deed in favour of the 1st respondent/1st plaintiff S.R. Swami in respect of the suit property immediately. The 1st respondent has already deposited the balance of sale consideration in Court. The appellant/3rd defendant is entitled to withdraw the same.
42. In the result, the judgment and decree of the trial court are confirmed, the appeal fails and is dismissed with costs of the 1st respondent.
43. Appeal dismissed.