Madras High Court
A. Ulaganatha Reddy vs D. Nandagoppal Chetti And Ors. on 4 August, 2005
Equivalent citations: 2005(4)CTC426
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This second appeal arises out of the concurrent Judgment and Decree of the Courts below: Judgment and Decree, dated 11.12.1997, made in A.S. No. 19/1995, on the file of the Principal District Judge, Chingleput, confirming the Judgment and Decree dated, 30.6.1994 made in O.S. No. 166/1988 on the file of the Subordinate Judge, Kancheepuram.
2. The facts relating to the second appeal could be briefly stated thus:
O.S. No. 106/1988.-- The suit property was originally owned by one Devathi Munirathina Chetty, father of Defendants 1 to 4. D-5 is the son of D-1. Offering to sell the suit property to the Plaintiff for Rs. 23,000, D-1 to D-4 have executed an Agreement of Sale on 15.7.1984 in favour of the Plaintiff (Ex.A-1). Under the said agreement, Defendants 1 to 4 have received an advance of Rs. 20,101 and agreed to receive the balance and execute the Sale Deed. On 28.11.1984, D-1 received a sum of Rs. 8,000 from the Plaintiff for himself and on behalf of the Defendants 2 to 4 and made Ex.A-2 endorsement on the agreement. On 29.1.1985, the third Defendant had received a sum of Rs. 10,000 for himself and on behalf of his brothers and made Ex.A-3 Endorsement. D-5 son of D-1 had also joined in Ex.A-3 endorsement. The Plaintiff was put in possession of the suit property on 29.1.1985.
3. Further case of the Plaintiff is that he has spent more than Rs. 25,000 for levelling the suit property and for laying pipelines for the purpose of irrigation. Thereafter, D-4 had collected a further sum of Rs. 575 towards the sale consideration for himself and on behalf of other Defendants. Contrary to their earlier representation, on 30.6.1988, the Defendants 2 to 4 had issued Ex.A-4-Notice making false allegations and repudiating the agreement. The Plaintiff has issued suitable reply (Ex.A-5) calling upon the defendants to perform their part of the Contract and execute the registered Sale Deed. Instead of registering the Sale Deed, the Defendants 2 and 4 have issued Ex.A-6-Rejoinder. Since the defendants have evaded compliance, the Plaintiff had filed the suit for specific performance of contract. As the alternative relief, the Plaintiff has also claimed the refund of sale consideration.
4. Admitting the execution of the Agreement, the Defendants 1 to 4 have filed the Written Statement, contending that D-1 to D-4 had no authority to receive the amount and bind the other sharers. Ex.A-3-Endorsement dated 29.1.1985 is believed to be an interpolation by tampering, regarding the possession and the alleged extension of time. The suit property is self acquired property of Devathi Munirathina Chetty, who died on 22.1.1988. He had left four sons and three daughters as his legal heirs. The Plaintiff was never ready and willing to perform his part of the contract. Since the Agreement was not executed by the original owner, the agreement is not valid. The allegations that the Plaintiff was put in possession of the suit property and that he had spent an amount of Rs. 25,000 to improve the land is denied by the Defendants.
5. O.S. No. 352/1990:
When the suit for specific performance was pending, three female heirs of Devathi Munirathina Chetty had filed this suit for partition and separate possession of their 3/7th share and for permanent injunction against the Plaintiff/Appellant herein. According to the female heirs, the suit property originally belonged to their father Devathi Munirathina Chetty, who died on 22.1.1988 leaving the Plaintiffs and the Defendants 1 to 4 as his legal heirs to succeed his estate. The Plaintiffs and the Defendants 1 to 4 are each entitled to 1/7th share. Since the Defendants 1 to 4 are not willing to give their legitimate share to the daughters, the daughters have filed the suit for partition and separate possession and also for permanent injunction against the Appellant/Plaintiff in O.S. No. 166/1988.
6. The Defendants 1 to 4 have filed Written Statement (in the partition suit) conceding the claim of their sisters and denying the agreement of the Plaintiff, who was the fifth Defendant.
7. The Appellant/Plaintiff filed the Written Statement in O.S. No. 352/1990. In the Written Statement, he has based his defence on the Agreement of Sale and pleaded that the possession of the suit property was delivered to the Appellant on 29.1.1985. Major portion of the Sale Consideration was paid and the Appellant had spent considerable amount and improved the suit property. Possession of the suit property being lawful, there cannot be injunction against the Appellant. The Defendants 1 to 4 have sold nearly fifteen acres of land without the female heirs being signatories to the Sale Deed and the female heirs cannot challenge the agreement of sale in favour of the Plaintiff.
8. Since the subject matter of the suit property in both the suits being the same, both the suits were tried jointly and a common Judgment was passed by the Subordinate Judge, Kancheepuram. The learned Judge has granted decree for partition in O.S. No. 352/1990. Declining the relief of specific performance in O.S. No. 166/1988, the trial Court granted the relief of return of money. The trial Court mainly found that the Agreement of Sale by the brothers 1 to 4 is not binding upon the sisters, who are the Plaintiffs in O.S. No. 352/1990. It was further held that the Defendants 1 to 4 having received the amount of Rs. 20,101 are bound to return the amount and decreed the suit in O.S. No. 166/1988 for the alternative relief.
9. Aggrieved over the Judgment of the trial Court, Plaintiff/Appellant has preferred the appeal before the District Court, Chenglepattu in A.S. No. 19/1995 and A.S. No. 58 /1995. On the evidence of PW-2, the learned District Judge found that Ex.A-3 endorsement is manipulated. Finding that in the Plaint, there are no averments as to the readiness and willingness to perform the contract, the Appellate Court confirmed the Judgment of the trial Court, declining the specific performance. Pointing out that the suit property being the self acquired property of Devathi Munirathina Chetty, in which the daughters are also having the share, the Appellate Court also denied the main relief of specific performance. The learned District Judge has gone in detail regarding Ex.B-1 (Xerox copy of Ex.A-1-Agreement). The learned District Judge negatived the contention of the Plaintiff that Ex.B-1 must have been taken after the same being produced into the Court.
10. As against the Judgment in A.S. No. 19/1995 (arising out of the Judgment in O.S. No. 166/1988), this second appeal is preferred. The second appeal was admitted on the following substantial questions of law:
1. Whether Ex.A-3 which forms part of Ex.A-1 was inserted subsequently and whether such a plea is maintainable in the absence of raising the same in the Written Statement in view of P. Paul James alias Pauls v. P. Jesudas Cyril and Ors., 1996 (1) MLJ 375 ?
2. Whether there is impossibility of performance of the contract, since the Plaintiffs in O.S. No. 352/1990 have filed suit for partition and directing sale of rest of the shares excluding that of the Plaintiffs in O.S. No. 352/1990 will result in hardship in executing decree and whether the lower appellate Court is justified in denying the main relief on this ground ?
3. Whether the endorsement dated 29.01.1985 (Ex.A.3) is not true merely because of Ex.B-1 notwithstanding evidence of P.Ws. 1 and 3 ?
11. Learned counsel for the Appellant contended that the Appellate Court erred in placing reliance upon Ex.B-1. Main contention urged is that Ex.B-1 must have been taken from the Court by hiding the Court seal appearing on the document, which aspect was not property appreciated by the Appellate Court. The learned counsel for the Appellant has further submitted that the cramped writing does not lead to the inference that it was written after obtaining the signature of the D-1. The learned counsel further submitted that Ex.B-1-Xerox copy of Ex.A-1 came into existence only on 15.3.1994, when PW-1 was recalled and further cross-examined. The learned counsel for the Appellant has drawn the attention of the Court to the non-mention of Ex.B-1 in Ex.A-8-Rejoinder and in the Written Statement filed by the Defendants. Submitting that Ex.B-1 is highly questionable and that there are no pleadings regarding Ex.B-1 in the Written Statement, the learned counsel for the Appellant has placed reliance upon a number of decisions in support of his contention that when no pleading is adduced, no amount of evidence could be looked into. Submitting that the daughters have filed the suit for partition mainly to defeat the lawful claim of the Plaintiff, the learned counsel for the Appellant has urged the Court to reverse the concurrent findings of the Courts below.
12. Countering the arguments, the learned counsel for the Respondents/Defendants has contended that the Courts below have rightly appreciated the contention and the evidence adduced by both the parties. It is further submitted that in the absence of averments regarding the readiness and willingness and in view of the share of the daughters (3/7th share), the Courts below have rightly declined to exercise the discretion and the concurrent findings of the Courts below do not suffer from any serious or substantial error warranting interference.
13. It is the admitted case that Ex.A-1-Agreement was executed by the Defendants 1 to 4 in favour of the Plaintiff on 15.7.1984. The Defendants 1 to 4 have agreed to sell the suit property for Rs. 23,000, fixing the time limit of 31.1.1985. There are two endorsements of payment in Ex.A-1:
Ex.A-2.-- On 28.11.1984, the first Defendant had received a sum of Rs. 8000 from the Plaintiff for himself and on behalf of the Defendants 2 to 4 and endorsed Ex.A-1.
Ex.A-3.-- On 29.01.1985, the third Defendant had received a sum of Rs. 10,000 and made endorsement in Ex.A-1 agreement. D-5 who is the son of D-1 had also joined in Ex.A-3 Endorsement.
14. The much disputed endorsement is the last four lines in Ex.A-3 endorsement. Ex.A-3 Endorsement which reads:
???(I) What is much disputed is the last four lines which states that the defendants would execute the Sale Deed as and when called for by the Plaintiff and the alleged handing over of the possession to the Plaintiff.
15. For holding that Ex.A-3 endorsement is not a genuine one, the first Appellate Court has mainly relied upon:
1. Evidence of PW-1;
2. Ex.B-1-Xerox copy and the absence of the last four lines/interpolation in Ex.B-1;
3. Non-mention about Ex.B-1-Xerox copy in Ex.A-5 notice.
The main contentious points urged revolve around the disputed last four lines in Ex.A-3 of the above findings of the first appellate Court. In Ex.A-3, last four lines, ???(I) have been written as interpolation. The writing and the signature below thereon is very much cramped. The writing appears to be written after getting the signature of the third Defendant. The writing of the last four lines within the limited space seems to have been written to adjust the space. The sentence, ???(I) is obviously written over the signature of D-3, after obtaining his signature.
16. In this regard, the First Appellate Court has mainly referred to the evidence of PW-2, who is the scribe, which is relevant to be noted. In his evidence PW-2-Scribe has stated that Ex.A-3-Endorsement was written at Madras and at that time, a sum of Rs. 10,000 was given to the third Defendant. PW-2 has also stated that subsequent to the date of endorsement, on the request of the Plaintiff, he has written the subsequent recitals as interpolation. From the evidence of PW-2, it is clear that the disputed writing in Ex.A-3 endorsement had been later included at the instance of the Plaintiff. As rightly pointed out by the First Appellate Court, it was not suggested to PW-2 that he has been gained over by the Defendants. In such circumstance, There is no reason to discard the evidence of PW-2. Much evidentiary value is to be attached to the evidence of PW-2, who is the own witness of the Plaintiff, who has said that the disputed writing was written at the instance of the Plaintiff.
17. Certain other circumstances supporting the version of PW-2 is also to be pointed out. Ex.A-4 Notice (dated 30.6.1988) was sent to the Plaintiff informing him that he Plaintiff "did not pursue the agreement within the stipulated time and as such, the Plaintiff has lost his right, if any, under the sale agreement". For Ex.A-4 - Notice, the Plaintiff had issued Ex.A-5-Reply dated 15.7.1988. Ex.A-5 Notice only states about the endorsement on 29.1.1985 for payment of Rs. 10,000 and that the Plaintiff was put in possession. Ex.A-5 reads:
"Then on 29.1.1985, for the purpose of this agreement D. Muniramakrishnama Chetty representing for himself and for his brothers named D. Nandagopal Chetty, D. Radhakrishaiah Chetty and D. Padmanabha Chetty received an amount of Rs. 10,000 (Rupees Ten Thousand only) from my client before the attestors and the scribe and gave the possession over the hereunder schedule mentioned property to my client. The same was reduced into writing in the agreement itself."
18. In Ex.A-5-notice, referring to Ex.A-3-Endorsement, it is said that D-3 had made an endorsement for himself and on behalf of others, agreeing to register the execution of Sale Deed. Even after the expiry of the stipulated period, the Sale Deed was not registered. In Ex.A-5-Reply Notice, the sentence, "and the same was reduced into writing on 29.01.1985 itself has been subsequently added by striking of the earlier sentence. At this juncture, it is relevant to recapitulate the evidence of PW-2-Scribe who has stated that he had written the disputed writing in Ex.A-3-Endorsement at the instance of the Plaintiff sometime after Ex.A-3-Endorsement.
19. In support of its finding that the writing in Ex.A-3 is only an interpolation, very much reliance has been placed upon Ex.B-1 by the lower Appellate Court. Ex.B-1 is the Xerox copy of Ex.A-1 which is said to have been handed over to the Defendants at that time when Ex.A-3 endorsement was written by PW-2 on 29.01.1985. PW-2 has also spoken about the handing over of the Xerox copy of the Agreement of sale. Referring to certain features in Ex.B-1, the learned counsel for the Appellant/Plaintiff has submitted that Ex.B-1-Xerox copy must have been taken from out of Ex.A-1, after the same was being produced in the Court. On behalf of the Plaintiff, it is contended that the Court seal on the reverse of the first page must have been hidden and thereafter, Xerox copy must have been taken by hiding the disputed last four lines in Ex.A-3. It is submitted that the Appellate Court did not consider the special features appearing in Ex.B-1 which support the contention of the Appellant/Plaintiff. In support of his contention that Ex.B-1 must have been taken only from Ex.A-1-Agreement (by hiding certain portions), the learned counsel for the Appellant/Plaintiff has referred to the following:
that the signature of the scribe in Ex.A-2-Endorsement appears in part in Ex.B-1-Xerox copy. Lines below the signature of the scribe is in fragments.
in Ex.A-5-Reply Notice, there is no mention about having in possession of Ex.B-1-Xerox copy of the agreement.
Ex.B-1-Xerox copy has been produced in the Court for the first time on 15.3.1994, when PW-1 was recalled and further examined.
The first appellate Court had placed implicit reliance upon Ex.B-1 and evidence of PW-2, who has stated about the handing over of Xerox copy of the Agreement to the Defendant after Ex.A-3-Endorsement. In its Judgment, the First Appellate Court though raised suspicion regarding Ex.B-1-Xerox copy, the Appellate Court did not accept the contention in view of the oral evidence of PW-2.
20. By a careful comparison of Ex.A-1 and Ex.B-1, it is seen that the signature of the scribe in Ex.A-2-Endorsement appears only in part in the Xerox copy. Likewise, the line beneath the signature of the scribe is also in fragment, not forming a single line as noted in the original Ex.A-2. The line beneath the signature of the scribe is split up into at least two parts. Split line just above the date 28.11.1984, which is not seen in Ex.A-1.
21. The contention of the Plaintiff is that Ex.B-1-Xerox copy must have been taken from Ex.A-1 (after the same was being produced in Court) is also strengthened by a comparison of Ex.A-1 and Ex.B-1. This is more visible in the first page where imprint of the rusted staple pin is also found on the Xerox impression in Ex.B-1. The Staple pin in Ex.A-1-Agreement must have got rusted due to passage of time. This impression of the rusted staple pin finds clear Xerox impression in Ex.B-1, showing that Ex.B-1-Xerox copy must have been taken only from out of Ex.A-1 after a long time. The contention of the Plaintiff that Ex.B-1-Xerox copy has been taken from Ex.A-1 after the same was being produced into the Court by hiding the Court seal and by hiding the disputed writing in Ex.A-3, is more probable.
22. Only because of the same, there is no reference about Ex.B-1-Xerox copy in the Written Statement nor in Ex.A-4-Notice. This Court is of the view that the contention of the Plaintiff that Ex.B-1-Xerox copy must have been made from out of Ex.A-1 is more probable. In his evidence PW-2 has stated that one Xerox copy of the Agreement was handed over to the defendants. It may be that the Xerox copy might have been given to the defendant. But Ex.B-1 is not the one which could have been handed over to the defendants.
23. There is no mention about the Ex.B-1 in the Written Statement. Nor about the handing over of Xerox copy of the agreement to the defendants. Contending that in the absence of pleadings, no amount of evidence could be looked into, the learned counsel for the Appellant has relied upon:
1. Oriental Insurance Company Ltd., Divisional Office, No. 118-B, West Perumal Maistry Street, Madurai - 1 v. T. Pitchaimani and Ors., .
2. Arunachalam Pillai v. Ramu Mudaliar (died) and three others,
3. V. Manakkan and five Ors. v. Veera Perumal,
4. K. Mani v. Elumalai, 2002 (3) CTC 598 This Court is not proposed to go in elaborate details of the above, suffice it to point out that even de-hors Ex.B-1, there is no equitable grounds to exercise the discretion to grant the relief of specific performance.
24. The view of this Court on the probability that Ex.B-1 must have been taken out of Ex.A-1-Agreement after the same was produced into the Court, may not be the reason to upset the concurrent findings of the Courts below, when the findings are based on well balanced reasoning. In the evidence of PW-2, it is made clear that the last four lines in Ex.A-3 are the subsequent interpolation which were written not with the consent of the defendants. Hence the Courts below have recorded the finding that the Plaintiff has not come to the Court with clean hands and is not entitled to the discretionary relief of specific performance.
25. The relief of specific performance is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. The Court has first to consider whether the Plaintiff has established the case. His conduct during, at and from the date of contract till date of suit bears great relevance. In a case of specific performance, it is for the Plaintiff to establish that the covenants in the contract are clear, cogent and fair; that he is ready and has always been ready and willing to perform his essential terms of the contract from the date of contract till date of decree. He must come to the Court with clean hands. If his conduct is tainted with falsity of the case or unworthy of acceptance, equity denies him the relief.
26. It is not possible or desirable to lay down the circumstances under which the Court could exercise its discretion against the Plaintiff. But they must be such that the representation or conduct of the Plaintiff is directly responsible in making the defendant to change the position or such as to bring out the situation which would be inequitable to give the Plaintiff such a relief. The Court should meticulously consider all the facts and circumstances of the case. The Court is not bound to give lawful performance merely because it is lawful to do so. The discretion has to be exercised carefully taking note of the conduct of the parties.
27. In the light of the above, if we consider the case in hand, we find that the discretion cannot be exercised in favour of the Plaintiff to grant specific performance. Stipulated time for execution of the Sale deed was fixed by 31.1.1985. As per the terms of Agreement, the balance amount of Rs. 20,899 is to be paid before 31.1.1985 and the Sale Deed is to be obtained. Under Exs.A-2 (dated 28.11.1984) and A-3 (dated 29.1.1985) endorsements, the Plaintiff has paid a further advance of Rs. 8,000 + Rs. 10,000 respectively. A total amount of Rs. 20,101 has been paid, out of the total sale consideration of Rs. 23,000. The Balance amount of Rs. 1,899 remains to be paid. But the same was not paid by the Plaintiff within the stipulated time or within the reasonable time, after Ex.A-3 second endorsement which was made on 29.1.1985. Only the defendants have first issued Ex.A-4 notice on 30.6.1988 stating that the Plaintiff did not pursue the agreement within the stipulated time and inform him that he has lost his right. There is no evidence showing readiness and willingness of the Plaintiff to perform his part of the contract during the interregnum period between 29.1.1985 and 30.6.1988. In the reply notice, it has been alleged that the Plaintiff was always ready and willing to pay the balance amount to the defendants and get the sale Deed registered. Even in the reply notice, the Plaintiff had not fixed any specific date calling upon the defendants to execute the Sale Deed. By meticulous consideration of the conduct of the Plaintiff, this Court finds that the Courts below have rightly declined to exercise the discretion. The reason given by the Courts below in refusing to grant the relief of specific performance on the ground that there had been delay is well founded.
28. In a suit for specific performance, averment in the Plaint as to the Plaintiff's readiness and willingness to perform his part of the contract is necessary. But in the plaint averments, the Plaintiffs readiness and willingness has not been clearly pleaded. Section 16(c) of the Specific Relief Act provides that the Plaintiff must plead and prove that he has always been ready and willing to perform his part of the contract. Continuous readiness and willingness at all stages from the date of Agreement till the date of hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the Plaintiff must be taken into consideration in determining the readiness and willingness of the Plaintiff to perform his part of the contract. As pointed out by the trial Court, there is no specific pleadings in the plaint as to the Plaintiff's readiness to execute the Sale Deed. In Paragraph No. 6 of the Plaint, it is stated that a notice was sent, "calling upon the Defendants to perform their part of the contract and required them to execute and register the Sale Deed in favour of the Plaintiff. Except those averments, no definite averments have been made as to what point of time and how the Plaintiff was ready to take the Sale Deed and how the same was not complied with by the defendants. Hence the requirements of Section 16(c) of the Specific Relief Act have also not been complied with.
29. The Appellate Court declined the relief of specific performance on the ground of, "impossibility of performing the contract by the defendant". As noted earlier, the suit property originally belonged to one Devathi Munirathina Chetty as his self acquired property. The said Devathi Munirathina Chetty died on 22.1.1988, leaving four sons and three daughters. The three daughters have filed O.S. No. 352/1990 for partition, which suit was decreed and a preliminary decree for partition of 3/7th share of the daughters had been passed. The lower Appellate Court had also held that the Defendants 1 to 4 had no absolute title to convey the entire suit property in favour of the Plaintiff. A plea was raised in the Courts below that the shares of the sons alone could be ordered to be conveyed, excluding the shares of the daughters. The lower appellate Court was held that that plea cannot be accepted since the same caused hardship to the defendants and also might cause difficulty in executing the decree. No appeal has been preferred by the Plaintiff against the Judgment of Preliminary Decree for partition in O.S. No. 352/1990 confirmed by the first Appellate Court in A.S. No. 58/1995. Hence there is no reason to take a different view from that of the Appellate Court in declining the limited relief of specific performance regarding the shares of the sons.
30. Both the suits have been disposed of by a common Judgment. Likewise, in the first Appellate Court, both the appeals A.S. Nos. 19/1995 and 58/1995 have been disposed of by the common judgment. While so, the Plaintiff has not preferred any appeal as against the Judgment in O.S. No. 352/1990. When the daughters are entitled to 3/7th share, in the absence of any appeal as against the Judgment and Decree in O.S. No. 352/1990, it is not open to the Plaintiff to seek for specific performance for the entire extent of the property. As per Exs.A-1 to A-3, the Plaintiff has paid Rs. 20,101. The Courts below have rightly decreed the alternative relief, ordering repayment of money of Rs. 20,101 to the Plaintiff. The findings and conclusions of the Courts below are in proper appreciation of the evidence. The reasoning of the Courts below is well balanced and there is no serious or substantial error warranting interference.
31. Therefore, the Judgment and Decree, dated 11.12.1997, made in A.S. No. 19/1995 on the file of the Principal District Judge, Chingleput, confirming the Judgment and Decree, dated 30.6.1994, made in O.S. No. 166/1988 by the Subordinate Judge, Kancheepuram are confirmed and this second appeal is dismissed. In the circumstance of the case, there is no order as to costs.