Madras High Court
R.Pitchai vs V.Vasanthasena :1St
Author: S.S.Sundar
Bench: S.S.Sundar
S.A.(MD)No.548 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 29.08.2019
Delivered on: 02.06.2020
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.(MD)No.548 of 2017
and
C.M.P.(MD)Nos.6061, 6066 and 6402 of 2019
1.R.Pitchai
2.R.Angappan
3.R.Rengasamy :Appellants / Appellants
/ Defendants 3 to 5
-Vs-
1.V.Vasanthasena :1st Respondent / 1st Respondent
/ Plaintiff
Lakshmi Ammal (Died)
2.Uma Maheshwari :2nd Respondent / 2nd Respondent
/ 2nd Defendant
3.Sasikala Devi : 3rd Respondent/ 4th Respondent
PRAYER: Second Appeal is filed under Section 100 of the Civil
Procedure Code, to set aside the judgment and decree, dated
04.07.2017 passed in A.S.No.13 of 2013 on the file of the
Additional District Court (Fast Tract Court), Palani, confirming
the judgment and decree, dated 30.11.2012 passed in O.S.No.
161 of 2007 on the file of Subordinate Court (Kodaikanal Camp),
Palani.
For Appellants :Mr.S.Subbiah
for M/s.V.S.Karthik Associates
For R1 and R2 :Mr.J.Bharathan
for Mr.T.Lenin Kumar
http://www.judis.nic.in
1/38
S.A.(MD)No.548 of 2017
For R2 and R3 :No Appearance
JUDGMENT
The defendants 3 to 5 in the suit in O.S.No.161 of 2007 on the file of the Subordinate Court (Camp at Kodaikanal), Palani, are the appellants in the second appeal.
2.The first respondent in this appeal filed the suit in O.S.No.161 of 2007 before the Subordinate Court, Palani for specific performance of an agreement of sale, dated 28.05.2007, executed by the respondents 2 and 3 along with their mother, the first defendant in the suit, in favour of the plaintiff. The suit property is shown as undivided 2/3 share of an extent of 0.59.0 Hectare in S.No.71/7 Kodaikanal Village, Kodaikanal Taluk, Dindigul District.
3.The case of the first respondent / plaintiff is as follows:
3.1.The suit property belonged to one S.Ramasamy Naidu and after his demise, his wife and two daughters, namely, defendants 1 and 2 and another sister, by name, Sasikala Devi (third respondent in this appeal) inherited the suit property. The defendants 1 and 2 along with yet another daughter of first defendant, by name, Sasikala Devi, executed an unregistered sale agreement, in favour of plaintiff, on 28.05.2007, agreeing to http://www.judis.nic.in 2/38 S.A.(MD)No.548 of 2017 sell the suit property at the rate of Rs.5,10,000/- per acre. A sum of Rs.1,50,000/- was paid by the plaintiff to defendants on the date of agreement. The defendants agreed to receive a sum of Rs.5,79,300/- within a period of four months from the date of agreement and to execute the sale deed. The agreement was signed by the defendants 1 and 2 along with Sasikala Devi and one copy of the agreement was given to the plaintiff and another copy was given to the defendants.
3.2.Though the plaintiff was ready and willing to pay the balance for getting the sale deed registered, the defendants have delayed the execution proceedings under one pretext or another. The plaintiff came to know that the defendants made efforts to sell the property in collusion with one R.Rengasamy (5th defendant). Since the defendants made an attempt to alienate and encumber the suit property, the plaintiff sent a legal notice to defendants 1, 2 and 5 on 03.08.2007 and the notice sent by the plaintiff was returned as the defendants refused to receive. In the meanwhile, Sasikala Devi came forward to execute the sale deed in respect of her 1/3 share and accordingly, a sale deed, dated 28.08.2007 was registered. After the sale executed by one of the co-owners, the plaintiff http://www.judis.nic.in 3/38 S.A.(MD)No.548 of 2017 demanded the defendants 1 and 2 to execute the sale deed in respect of their 2/3 share upon receipt of a sum of Rs.3,86,200/-.
3.3.Since defendants were trying to alienate the suit property, the plaintiff filed a suit in O.S.No.151 of 2007 before the Subordinate Court, Palani for an injunction restraining the defendants 1 and 2 in the present suit from alienating the suit property in any manner. During the pendency of the suit, the plaintiff demanded the defendants 1 and 2 to execute the sale deed in respect of their 2/3 share as per the agreement, dated 28.05.2007. Since the defendants did not oblige, the plaintiff is forced to file the suit in O.S.No.161 of 2007 for specific performance of the agreement of sale dated 28.05.2007, against the defendants 1 and 2.
3.4.The suit for specific performance was filed on 28.09.2007 immediately, on the next day of completion of four months specified in the sale agreement. Thereafter, the defendants 3 to 5 were impleaded as purchasers of suit property after the sale agreement as per the order in I.A.No.187 of 2008, dated 05.12.2008.
4.The defendants 1 and 2 filed a written statement http://www.judis.nic.in 4/38 S.A.(MD)No.548 of 2017 admitting the execution of the sale agreement, dated 28.05.2007. However, in the written statement, the defendants 1 and 2 have not even disclosed the sale deed executed by them in favour of defendants 3 to 5. Except raising some technical plea regarding payment of Court fee for the value of sale agreement and non-joinder of Tmt.Sasikala Devi, no other substantial point is raised in defence. The defendants 3 to 5 filed a written statement, almost in the same line, as that of the written statement filed by the defendants 1 and 2. Stating that the suit in O.S.No.151 of 2007 is dismissed as settled out of Court, the defendants 1 and 2 pleaded that the suit for specific performance is not maintainable. The defendants 3 to 5 have purchased 2/3 share of the suit property from defendants 1 and 2 for a consideration of Rs.6,00,000/- by a sale deed, dated 27.09.2007.
5.The trial Court, after framing necessary issues, found that the agreement of sale is proved and that the sale deed executed by the respondents 2 and 3 in favour of appellants / defendants 3 to 5 is void. Finding that the plaintiff has proved her case, the trial Court decreed the suit for specific performance. Aggrieved by the same, the defendants 3 to 5 filed http://www.judis.nic.in 5/38 S.A.(MD)No.548 of 2017 an appeal in A.S.No.13 of 2013 before the Additional District Court (Fast Tract Court), Palani.
6.During the pendency of the said appeal, the appellants submitted additional written statement. Apart from that, the appellants filed three applications in I.A.Nos.58 to 60 of 2014. I.A.No.58 of 2014 was filed to receive additional written statement; I.A.No.59 of 2014 was filed to recall the plaintiff/PW-1 for further cross examination; and I.A.No.60 of 2014 was for reception of additional documents. The learned Additional District Judge, Palani, dismissed the said appeal along with all the interlocutory applications and confirmed the judgment and decree of the trial Court. Aggrieved by the concurrent findings of Courts below, the above second appeal has been preferred by the defendants 3 to 5.
7.The second appeal was admitted on the following substantial questions of law:
“1.Has not the Lower Appellate Court committed a serious error in law in dismissing the applications in I.A.No.58 of 2014, I.A.No.59 of 2014, I.A.No.60 of 2014 mechanically accepting the version of the 1st respondent/plaintiff without adverting to the circumstances under which the applications filed which clearly satisfies the criteria provided under Order 41, Rule 27 of C.P.C as well as Order 8, Rule 9 of C.P.C for reception of additional documents as well as written statement?
http://www.judis.nic.in 6/38 S.A.(MD)No.548 of 2017
2.Whether the judgment and decree of the Courts below could be sustained in law in granting the decree for specific performance without adverting to the very conduct of the 1st respondent/plaintiff which will not in any way satisfy the requirements contemplated under Sections 16 & 20 of the Specific Relief Act?
3.Whether the very suit for specific performance in O.S.No.161 of 2007 could be sustained in law having regard to the dismissal of the earlier suit in O.S.No.150 of 2007 in view of the bar provided under Order 2, Rule 2 of C.P.C.?”
8.The learned Senior Counsel appearing for the appellants advanced arguments not only on the questions of law framed by this court, but also on various issues. Before considering the rival submissions, this Court, for the purpose of proper appreciation of arguments on legal issues and on factual issues, considered the following dates and events:-
1)On 28.05.2007, the defendants 1 and 2 along with Sasikala Devi executed a sale agreement in favour of the plaintiff to sell the suit property at the rate of Rs.5,10,000/- per acre and received a sum of Rs.1,50,000/- as advance. The balance sale consideration of Rs.5,79,300/- shall be paid within four months.
2)On 03.08.2007, the plaintiff issued legal notice to defendants 1 and 2 and Tmt.Sasikala Devi and fifth defendant, calling upon the defendants 1 and 2 and Sasikala Devi to execute http://www.judis.nic.in 7/38 S.A.(MD)No.548 of 2017 the sale deed, as per sale agreement.
3)On 23.08.2007, the defendants 1 and 2 executed a registered general power attorney in respect of their 2/3 share in favour of one Shanmuga Sundaram.
4)On 24.08.2007, the plaintiff once again sent another legal notice to defendants 1, 2 and 5.
5)On 28.08.2007, Sasikala Devi executed a registered sale deed in favour of the plaintiff in respect of her undivided 1/3 share in the suit property.
6)On 27.09.2007, the defendants 1 and 2 executed a sale deed through their power of attorney, Shanmuga Sundaram in favour of defendants 3 to 5. It is admitted that the appellants are relatives to defendants 1 and 2. Appellants are the sons of one Raju Naidu. The father of second defendant, Ramasamy Naidu and the father of appellants Raju Naidu are brothers.
Though a sale deed was executed in favour of appellants on 27.09.2007, the document was presented for registration on 28.09.2007. The sale deed was subsequently registered as document No.2486 of 2007.
7)An ex parte decree was passed on 29.01.2010.
8)On 10.02.2010, the plaintiff / first respondent deposited a sum of Rs.3,86,200/- before the trial Court towards balance of http://www.judis.nic.in 8/38 S.A.(MD)No.548 of 2017 sale consideration payable to defendants 1 and 2, as per the sale agreement, dated 28.05.2007.
9)Later the ex parte decree was set aside and the suit was decreed as prayed for after full fledged trial.
9.The learned Senior Counsel appearing for the appellants focused on several issues. From the arguments advanced by the learned Senior Counsel appearing for the appellants and the written arguments submitted on behalf of the appellants, this Court would formulate the points raised by the learned Senior Counsel for the appellants in the following lines:
a)The appellants are bona fide purchasers of the suit property for value on 27.09.2007 and that the said sale deed, dated 27.09.2007 is not challenged by anyone and therefore, the plaintiff is not entitled to a decree for specific performance.
b)The suit for specific performance was filed on 28.09.2007, whereas, the appellants were impleaded as parties on 05.12.2008.
c)The suit for specific performance is liable to be dismissed for non-joinder of necessary parties, namely, General Power of Attorney of defendants 1 and 2 and the sister of second http://www.judis.nic.in 9/38 S.A.(MD)No.548 of 2017 defendant, by name, Tmt.Sasikala Devi.
d)The second suit for specific performance is barred under Order 2 Rule II of CPC, since earlier suit filed by the plaintiff in O.S.No.151 of 2007 was between the same parties and arising out of the same cause of action.
e)The earlier suit was dismissed as settled out of Court and that the same would operate as res judicata, in the present suit for specific performance between the same parties in relation to same subject matter.
f)The Courts below erroneously dismissed the application filed by the appellants under Order 41 Rule 27 CPC for reception of additional documents and the additional written statements and the application for recalling PW-1 for further cross examination.
10.The learned Senior Counsel appearing for the appellants after hearing the arguments of the learned Counsel for the first respondent, argued further by way of reply. The same will be dealt with in the course of this judgment, as it is not necessary to formulate those issues, which is only in response to the arguments of the learned Counsel for the first respondent. One of the substantial questions of law framed by this Court is http://www.judis.nic.in 10/38 S.A.(MD)No.548 of 2017 about the dismissal of three interlocutory applications by the appellate Court.
11.The appellants filed a miscellaneous petition in C.M.P. (MD)No.6402 of 2019 to receive certain documents, which are described in the petition as additional documents in the second appeal. The additional documents sought to be marked by the appellants in the second appeal are the following three documents:
a)The certified copy of the memo, signed by the first respondent and her Counsel.
b)The certified copy of judgment, dated 28.01.2008 passed in O.S.No.151 of 2007 on the file of the Subordinate Court, Palani.
c)The certified copy of decree, dated 28.01.2008 passed in O.S.No.151 of 2007 on the file of the Subordinate Court, Palani.
12.In the affidavit filed in support of the petition, the appellants have stated that the suit for specific performance is barred by Order 2 Rule II CPC in view of the dismissal of the suit in O.S.No.151 of 2007. Hence, it is contended that the memo, which was filed for dismissal of suit in O.S.No.151 of 2007 and http://www.judis.nic.in 11/38 S.A.(MD)No.548 of 2017 the judgment and decree of the suit in O.S.No.151 of 2007, are the only documents sought to be marked as additional documents. The fact that the suit in O.S.No.151 of 2007 was dismissed as not pressed is admitted. Similarly, the first respondent admitted that the suit was dismissed on the basis of a memo stated to have been filed by the plaintiff and her counsel. These documents are not disputed and the Counsel for the respondents has no serious objection regarding reception of three documents, as additional evidence. Hence, the petition in C.M.P.(MD)No.6402 of 2019 is allowed.
13.The appellants filed three applications before the lower appellate Court for reception of additional documents. It is to be seen that that the appellants, who are respondents 2 and 3 therein, have not marked any document during trial. There was no valid explanation for not producing those documents during trial. The list of documents are as follows:
t.vz;. Njjp tpguk; \uh
1. 30.11.1999 uhkrhkp gjpe;J vOjp GjpT rhd;W efy;
itj;j capy;
2. thhpR rhd;W n[uhf;]; efy;
3. 17.03.2007 D1, D2 rz;KfRe;juk; Nehl;lhp cz;ik
vOjpf; nfhz;l fpiua efy; rhd;Wld;
xg;ge;jk;
4. 30.05.2007 rhkpehjDf;F yl;Rkp n[uhf;]; efy;
tifawh vOjp itj;j
gth;
http://www.judis.nic.in
12/38
S.A.(MD)No.548 of 2017
5. 23.08.2007 rz;KfRe;juj;jpw;F Nehl;lhp cz;ik
D1, D2 nfhLj;j gjpe;j efy; rhd;Wld;
gth; gj;jpuk;
6. 04.09.2007 ml;tNfl; jdghyfd; mYytyf efy;
rhkpehjDf;F mDg;gpa xg;Gjy;
mwpf;if ml;ilAld;
7. gl;lh 414 cz;ik efy;
8. fp];jp urPJfs; mry;
9. 04.12.2012 Nftpl; rh;t]
P ; efy;
14.The first defendant is the wife of Ramasamy Naidu. Absolutely, there is no dispute with regard to the title of property. Even in the Will, the property has been equally given in favour of the testator's wife and two daughters and hence, the suit property devolved on defendants 1 and 2 and the sister of second defendant, by name, Sasikala Devi. When equal share is given to all three legal heirs of Thiru.Ramasamy Naidu, original owner, this document is not relevant, as no other issue involving this document, was raised by the appellants before the Courts below.
15.The second document is an unregistered sale agreement stated to have been executed by the defendants 1 and 2 in favour of one Shanmuga Sundaram and the next document is the registered general power of attorney deed executed by defendants 1 and 2 in favour of the said Shanmugam Sundaram. http://www.judis.nic.in 13/38 S.A.(MD)No.548 of 2017 The agreement is between the defendants 1 and 2 and the power of attorney agent of defendants 1 and 2. One of the daughters of first defendant, by name, Sasikala is not a party to the sale agreement. This agreement is a controversial document and there was no plea in the written statement filed by the defendants before the trial Court. There was no plea in the written statement referring to any of the documents. In such circumstances, non production of the sale agreement or the other documents sought to be marked as additional documents before the trial Court assume more importance. In the absence of any explanation from any of the defendants before the lower appellate Court for non production of these documents, the appellants are not entitled to adduce the document as additional document before the appellate Court, especially, when there is no plea and the genuineness of the documents are doubtful. No amount of evidence without pleading can be admitted.
16.Though the learned Senior Counsel for the appellants produced before this Court, several judgments referring to the power of appellate Court to receive additional evidence under Order 41 Rule 27 CPC, there is no dispute with regard to the settled principles, regarding reception of additional evidence http://www.judis.nic.in 14/38 S.A.(MD)No.548 of 2017 under Order 41 Rule 27 CPC. It has been repeatedly held by Courts that additional documents can be received only, when a party satisfy the legal requirements of Order 41 Rule 27 CPC. In this case, the appellants have not stated anything to show the relevance of these documents to the case on hand. The documents were very much available and there was no explanation forthcoming from the appellants as to why those documents were not filed before trial Court. In such circumstances, the object behind filing the application before the lower appellate Court appears to be for extraneous reasons without any bona fide. No valid reason is found satisfying the requirements of Order 41 Rule 27 CPC. Further, it is well settled that new evidence to enable party to raise new point cannot be permitted.
17.The other two interlocutory applications, are to recall PW-1 for further cross examination and to receive additional written statement. Both cannot be permitted and the lower Appellate Court, after considering various factual aspects, dismissed those applications in I.A.Nos.58 to 60 of 2014 in A.S.No.13 of 2013. This Court do not find any infirmity in the order passed by the lower appellate Court.
http://www.judis.nic.in 15/38 S.A.(MD)No.548 of 2017
18.The appellants have also filed petitions in C.M.P. (MD)No.6061 of 2019 seeking permission to raise additional grounds and C.M.P.(MD)No.6066 of 2019 to raise additional substantial questions of law. The additional substantial questions of law formulated by the appellants are mostly arises on certain facts, which were not focussed before the lower appellate Court. Subject to legal limitations, this Court would consider, wherever a legal issue is raised, without involving any factual controversy.
19.The learned Senior Counsel appearing for the appellants submitted that the second suit for specific performance is barred by Order II Rule 2 CPC in view of the dismissal of earlier suit. The earlier suit was for an injunction restraining the defendants 1, 2 and 5 from alienating the suit property. The suit in O.S.No.151 of 2007 came to be filed on 30.09.2007 even before the time stipulated in the agreement of sale, dated 28.05.2007. Though it was recorded in the judgment and decree that the suit was dismissed as settled out of Court, the memo produced by the appellants would show that the request was for dismissal of the suit, as the cause of action does http://www.judis.nic.in 16/38 S.A.(MD)No.548 of 2017 not survive. This memo filed on 28.01.2008, after the suit for specific performance was filed by the plaintiff. It is to be noted that the property by then had been sold by defendants 1 and 2 in favour of defendants 3 to 5. Therefore, the suit in O.S.No.151 of 2007 has to be dismissed as infructuous.
20.The learned Senior Counsel appearing for the appellants then relied upon the judgment of Honourable Full Bench of Bombay High Court, reported in (1949) 51 BOMLR 9, in the case of Mohammad Khalil Khan vs Mahbub Ali Mian, wherein, the Honourable Full Bench of Bombay High Court has held as follows:
“61. The principles laid down in the cases thus far discussed may be thus summarised :
(1) The correct test in cases falling under Order II, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit." (Moonshee Buzloor Ruheem v. Shumsunnissa Begum, supra.) (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown, supra.) (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey, supra.) (4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(Brunsden v. Humphrey, supra.) (5) The cause of action has no relation whatever to the defence that may be set up by the, defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers..to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Musst. Chandkour v. Partab Singh, supra). This observation was made by Lord Watson in a case under Section 43 http://www.judis.nic.in 17/38 S.A.(MD)No.548 of 2017 of the Act of 1882 (corresponding to Order II, Rule 2), where plaintiff made various claims in the same suit.”
21.The learned Senior Counsel for the appellants also relied upon the unreported judgment of Honourable Supreme Court in Civil Appeal No.1055 of 2019, dated 10.05.2019, in the case of Pramod Kumar and another vs Zalak Singh and others, wherein, the Honourable Supreme Court held as follows:
“41. It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But as already noted, there is an equally important principle that no person shall be vexed twice on the same cause of action.”
22.The object of Order II Rule 1 and 2 CPC is to prevent multiplicity of suits on the same cause of action. When cause of actions are different in two suits, Order II Rule 2 CPC cannot be applied. In this case, the earlier suit was filed even before the expiry of time stipulated for performance. The plaintiff could http://www.judis.nic.in 18/38 S.A.(MD)No.548 of 2017 not file a suit for specific performance, as there was no repudiation of contract by then. It is now admitted that defendants 1 and 2 were making attempt to alienate the property even before the time stipulated in the sale agreement is over. Hence, filing of suit for injunction restraining defendants 1 and 2 from alienating the property cannot be faulted. However, after the filing of suit in O.S.No.151 of 2007, the defendants 1 and 2 have alienated the suit property in favour of appellants. Since the suit prayer has become infructuous, the first suit in O.S.No.151 of 2007 for injunction was allowed to be dismissed on the basis of memo, after filing the suit for specific performance. Though the decree in O.S.No.151 of 2007 shows that the suit was dismissed as settled out of Court, the dismissal of suit was on the basis of memo, which indicate that the prayer was to dismiss the suit on the ground that cause of action does not survive. Since the decree in earlier suit refers to settlement out of Court, the learned Senior Counsel appearing for the appellants submitted that the decree in earlier suit would operate as res judicata. This argument is ridiculous. It is not the case of appellants that there was a compromise. The mistake found in the decree contrary to the memo is not disputed. The cause of action for the earlier suit and the relief http://www.judis.nic.in 19/38 S.A.(MD)No.548 of 2017 are different in the earlier suit and issues arose in the earlier suit are entirely different. Hence, the arguments of learned Senior Counsel relying upon Order II Rule 2 CPC and Section 11 of CPC are rejected as unsustainable.
23.The learned Senior Counsel relied upon a judgment of Honourable Supreme Court in the case of B.Vijaya Bharathi vs P.Savitri and others, reported in 2018 (1) MWN (Civil) 105, and submitted that no relief is claimed against the defendants 3 to 5. He pointed out that the relief of specific performance cannot be granted in favour of the plaintiff, as the subsequent sale deed executed in favour of the defendants 3 to 5 was not cancelled or there is a no prayer in the suit either to cancel the document or to render the document void. Paragraph 17 of the said judgment is relevant and the same is extracted below:
“17) It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant No. 1 to Defendant No.2, and thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree for specific performance could possibly follow. While Mr. Rao may be right in stating that mere delay without more would not dis- entitle his client to the relief of specific performance, for the reasons stated above, we find that this is not such a case”.
24.The learned Senior Counsel for the appellants then http://www.judis.nic.in 20/38 S.A.(MD)No.548 of 2017 relied upon a judgment of this Court in the case of Velsamy vs Jothi Vayola Rani and another, reported in 2018 (5) CTC 425, wherein, I had held as follows:
“26.One more aspect in this case is about the enforceability of the decree even if it is granted in favour of the plaintiff. The plaintiff has not prayed for specific performance as against the subsequent purchaser namely the second defendant. Though the second defendant is a subsequent purchaser, the suit was filed only after the entire property was sold in favour of the second defendant under Exs.B3 and B4. The plaintiff also knew that the suit property has been sold in favour of the second defendant under Exs.B3 and B4. The plaint averments would prove this. In such circumstances, the suit prayer for a decree for specific performance as against the first defendant alone is not appropriate. Practically the suit prayer cannot be enforced against the second defendant.”
25.The learned Senior Counsel for the appellant and the Counsel for respondents relied upon a judgment of Honourable Supreme Court in Durga Prasad vs Deep Chand, reported in 1954 AIR (SC) 75: 67 LW 945, wherein, the Honourable Supreme Court had an occasion to deal with the form of decree in cases where, the suit property had been sold by the vendor before the suit for specific performance is filed. The Honourable Supreme Court had discussed the practice of Courts in India, which is no uniform and about the three distinct lines of thought that emerge. Ultimately, three circumstances were identified as possible and the first view is to declare the subsequent purchase http://www.judis.nic.in 21/38 S.A.(MD)No.548 of 2017 void as against the plaintiff and direct conveyance by the vendor alone. Another view is to direct both vendor and vendee to join. The third possibility was to limit execution of the conveyance to the subsequent purchaser alone. It is observed by the Honourable Supreme Court that a sale by vendee during subsistence of sale agreement, can be treated as voidable at the option of the earlier “contractor”. The Honourable Supreme Court held that proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance, so as to pass on title, which resides in him to the plaintiff. Paragraphs 39 to 42 of the judgment is extracted below for proper understanding:
“39.Section 91 of the Trusts Act, does not make the subsequent purchaser with notice a trustee properly so called but saddles him with an obligation in the nature of a trust (because of section 80) and directs that he must hold the property for the benefit of the prior "contractor", if we may so describe the plaintiff,. "to the extent necessary to give effect to the contract." Section 3 illustration (g) of the Specific Relief Act makes him a trustee for the plaintiff but only for the purposes of that Act. Section 40 of the Transfer of Property Act enacts that this obligation can be enforced against a subsequent transferee with notice but not against one who holds for consideration and without notice. Section 27 of the Specific Relief Act does not carry the matter any further.
All it savs is that specific performance may be enforced against "(a) either party thereto;
(b)any other person claiming under him by a title arising http://www.judis.nic.in 22/38 S.A.(MD)No.548 of 2017 subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract".
None of this helps because none of these provisions directly relate to the form of the decree. It will there- fore be necessary to analyse each form in the light of other provisions of law.
40.First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier "contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance. to the vendor was ordered but Sulaiman C. adopted the other course in Kali Charan v. Janak Deo(1). He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the. Contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.
41.We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one.
42.In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his http://www.judis.nic.in 23/38 S.A.(MD)No.548 of 2017 title to the plaintiff. This was the course followed by the Calcutta High Courtin Kafiladdin v. Samiraddin (I), and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, Paragraph 207 ; also Potter v. Sanders( 2 ). We direct accordingly.”
26.From the discussions and conclusion by the Honourable Supreme Court, one thing is clear that the Honourable Supreme Court deal with proper form of decree and suggest moulding of relief in favour of the plaintiff and not to dismiss the suit on any technical ground. The judgments relied upon by the appellants would not support the arguments that the suit for specific performance cannot be granted in this case, as the plaintiff in this case filed the suit against defendants without noticing the sale and the prayer against defendants after impleading the appellants require no correction. The decree as it stands can be moulded as prayed for in the plaint.
27.The learned Counsel for the first respondent also relied upon a judgment of Full Bench of this Court in the case of S.M.S.Subramanian Chettiar (Dead) and another vs Sinnammal and others, reported in LW (1930) Page 395, wherein, the scope of Order 41 Rule 33 CPC has been considered by the Full Bench of this Court way back in 1930. http://www.judis.nic.in 24/38 S.A.(MD)No.548 of 2017 The object enabling the appellate Court is dealt with. After extracting Order 43 Rule 33 CPC, this Court held as follows:
“The rule has been newly introduced in the Code of 1908. Its object is clearly to enable the Court to do complete justice between the parties. Its terms are very wide and in a proper case it give the Appellate Court ample discretion to pass any decree or make any order to prevent ends of justice from being defeated. By the very terms of the order, involving as it does an exercise of judicial discretion, the question whether the Appellate court should exercise the powers conferred by them in a particular case would no doubt depend upon the special facts and circumstances of that case. The illustration to the rule is a type of one class of cases, which calls for the exercise of the powers conferred by R.33; but it does not by any means exhaust the class of cases in which the power of the Appellate Court under class of cases may be invoked. Having regard to the wide language of the rule it is inexpedient to lay down any hard and fast rule regarding the true scope of this provision. In a proper case the Courts should not hesitate to use the powers conferred upon it by this rule....”
28.The learned Counsel for respondents also relied upon yet another judgment of Honourable Supreme Court in the case of Nadiminti Suryanarayan Murthy and others vs Kothurthi Krishna Bhaskara Rao and others, reported in (2017) 9 SCC 622. It is also relevant to consider the view expressed by the Honourable Supreme Court following the judgment of Honourable Supreme Court in Durga Prasad case (AIR 1954 (SC) 74) “29. The question, in this case, arises this way. The effect of the decree now is that the plaintiff is required to pay the balance sale consideration to defendant Nos.1 to 5 in terms of http://www.judis.nic.in 25/38 S.A.(MD)No.548 of 2017 agreement dated 18.01.1983 and, in turn, defendant Nos.1 to 5 have to execute the sale deed of the suit house in plaintiff's favour and give possession of the suit house to the plaintiff. Since, in the meantime, defendant Nos.1 to 5 have sold the suit house to defendant No.6, vide sale deed dated 09.02.1983 for Rs.45,000/- such sale would not bind the plaintiff. Indeed the sale deed dated 09.02.1983 now has become bad in law and the transaction of sale between defendant Nos.1 to 5 and defendant No.6 has failed. In such circumstances, the seller, i.e., (defendant Nos.1 to 5) has no right to retain the sale consideration of Rs.45,000/- which they received from defendant No.6 or any part thereof, as the case may be, and has to, therefore, refund the same to the buyer (defendant No.6). In other words, whatever amount which defendant Nos.1-5 received from defendant No.6 (whether Rs.45,000/- or any part thereof), the same has to be refunded by defendant Nos.1-5 to defendant No.6-(see Section 65 of the Contract Act). Nevertheless, defendant No.6 would join in execution of sale deed in plaintiffs favour along with defendant Nos.1-5 as held by this Court in Durga Prasad (supra) for conveying the valid title of the suit house to the plaintiff.
29.In yet another judgment, in the case of Vijay A.Mittal and others vs Kulwant Rai (Dead) and others, reported in (2019) 3 SCC 520, the Honourable Supreme Court considered similar issues in a suit for specific performance. After holding that the appellants are not bona fide purchasers for value, the Honourable Supreme Court following the judgment in Durga Prasad case (AIR 1994 (SC) 75), held that the subsequent alienee should jontly execute the sale deed in favour of legal representatives of original plaintiff.
http://www.judis.nic.in 26/38 S.A.(MD)No.548 of 2017
30.From the judgment referred to above and the principles followed, this Court can mould the relief by directing subsequent transferrees to join along with original defendants to execute the sale deed in favour of plaintiff. In the original plalint, the plaintiff sought relief directing the defendants to execute the sale in rsepect of their 2/3 share after receiving the balance. When appellants were impleadd, the plaint was amended and para 5(A) was introduced, wherein the sale deed in favour of the appellants was described as fraudulant and that appellants are impleaded to get a decree binding on appellants. Hence, they are pleaded as follows:
“Mdjhy; 3 Kjy; 5 gpujpthjpfs; “jhth nrhj;ij nghWj;J kw;w gpujpthjpfSld; Nrh;e;J thjpf;F fpiua cld;gbf;if \uj;Jf;fspd;gb fpiuag;gj;jpuk; vOjp gjpe;J nfhLf;f rl;lg;gb flikg;gl;Ls;sdh;.”
31.Hence, this Court, having regard to the position that the sale deed in favour of appellants is void and not binding on the plaintiff, is inclined to mould the relief accordingly.
32.The learned Counsel for the first respondent relied upon a judgment of Honourable Supreme Court in the case of Har Narain (Dead) by Lrs and Mam Chand (Dead) By Lrs and others, reported in 2011-1-L.W.402, wherein, the Honourable http://www.judis.nic.in 27/38 S.A.(MD)No.548 of 2017 Supreme Court has held that a sale cannot be termed as complete, until its registration and it becomes effective only after registration. It is also observed that the fiction created by Section 47 of Registration Act does not come into play before the actual registration of the document takes place. The Honourable Supreme Court dealt with a case where the owner of the property executed a sale in favour of respondents 2 to 6 on 02.08.1971. The document was registered on 03.09.1971. It is held that the sale was not completed by registration in favour of respondents 2 to 6, when the suit came to be filed on 10.08.1971. The Honourable Supreme Court held that the doctrine of lis pendense would apply in that case and the sale in favour of respondents 2 to 6 was held as void and hit by doctrine of lis pendense. Applying the ratio of Honourable Supreme Court in the present case, it is contended that the sale deed executed by defendants 1 and 2 in favour of appellants is hit by lis pendense and it is void.
33.The learned Senior Counsel for the appellants, however, submitted that the sale will be completed and valid from the date of execution upon its registration and that at no stretch of imagination, it can be said that the sale in favour of appellant is http://www.judis.nic.in 28/38 S.A.(MD)No.548 of 2017 hit by doctrine of lis pendens. He further submitted that the burden lies on the party relying upon Section 52 of Transfer of Property Act, 1882 to prove that his suit was instituted before the execution of the deed of transfer. Relying upon the judgment of Honourable Supreme Court in the case of Gurbax Singh vs Kartar Singh adn others, reported in 2002 (2) SCC 611, the learned Senior Counsel submitted that where two documents are executed on the same day, the time of their execution would determine the priority irrespective of the time of their registration, ie., the one which is executed earlier in time will prevail over the other executed subsequently.
34.Learned Senior Counsel relied upon yet another judgment of Kerala High Court in the case of Narayana Pillai Chandrasekharan Nair vs. Kunju Amma Thenkamma, reported in 1990 AIR (Ker) 177, wherein a similar plea of lis pendense on the basis fo registration of sale deed on the date of suit was considered. It is held as follows:
“8. The contention that Ext. A6 is hit by the rule of lis pendens embodied in Section 52 of the Transfer of Property Act does not appear to be correct. It is true that execution and registration of Ext. A6 and the presentation of the plaint were on the same day. So also, Ext. A6 shows that it was registered only at 2.30 p.m. That does not mean that execution and presentation for registration were at that time. It must have been executed and presented for registration much earlier. Then http://www.judis.nic.in 29/38 S.A.(MD)No.548 of 2017 only after the formalities and in the usual course it could have come up before the Sub Registrar at 2.30. There is no evidence regard ing time at which Ext.A6 was executed. "Transferred or otherwise dealt with" the property appearing in Section 52, T.P. Act is not the admission of execution before the Sub Registrar or the registration by him. That is execution and transfer of possession arid title as the case may be. The burden is on the party relying on the effect of Section 52 and pleading lis pendens to prove that his suit was instituted before the execution of the deed of transfer which he is impeaching (Hafiuddin v. Brijmohan (1913) 21 Ind Cas 602 followed in Mathan Philip v. Ithak, 1959 Ker LT 301 :(AIR l960 Ker 98).
9. It cannot be said that in no case law recognises fractions of a day. As observed by Grove, J. In Campbell v. Strangeways (1877) 3 CPD 105, law will distinguish the fractions of a day where it is necessary not merely for the purpose of justice, which is a vague term, but also, for the purpose of the decision to show which of the two events in question first happened. Judicial proceedings are to be considered as taking place at the earliest period of the day on which they, are done Subbayya v.Yellamma.(1886) ILR 9 Mad 130. That is when there is no evidence regarding the exact time. But the presentation of the plaint or the institution of the proceeding in a Court which alone is the commencement of the pendency of a suit or proceeding/for the purpose of Section 52 under the explanation, is not a judicial proceeding which is capable of resisting the above presumption. Appellant was not able to say when the plaint was presented. That means that even though both were on the same day he was not able to discharge his burden to prove that the transfer or otherwise dealing with property under Ext. A6 by the respondent was after the commencement of the lis. If so, Ext. A6 must be taken as not affected by Section 52 T.P. Act. ...”
35.From the admitted facts and the judicial pronouncements, this Court is unable to hold that the alienation in favour of appellants is hit by lis pendense. However, that does not enable the appellants to succeed, as they have failed in all http://www.judis.nic.in 30/38 S.A.(MD)No.548 of 2017 other aspects.
36.The learned Senior Counsel submitted that the appellants are bona fide purchasrs for value without notice or knowledge of prior agreement in favour of plaintiff. Surprisingly, the appellants have not even pleaded that they are bona fide purchasers for value. In this case, the suit agreement was executed on 28.05.2007 and a sum of Rs.1,50,000/- was paid as advance. The time for performance was given four month from the date of agreement. On 03.08.2007, the plaintiff issued a legal notice. Notice sent to third appellant, who is the brother of appellants 1 and 2, was returned with an endorsement “intimation given unclaimed”. The subsequent notice given on behalf of plaintiff dated 23.08.2007 was returned with an endorsement “refused”. This factual position is not disputed. On 28.08.2007, the third respondent herein executed a sale in respect of her 1/3 share. On 13.09.2007, a suit for injunction restraining the defendants 1 and 2 from alienating or encumbering the suit property was filed. Pending suit, the 2/3 share of defendants 1 and 2 was conveyed under the sale deed, dated 27.09.2007 just one day prior to the suit. The document was registered on 28.09.2007, ie., on the date of suit. Had there http://www.judis.nic.in 31/38 S.A.(MD)No.548 of 2017 been a plea raised by appellants, as bona fide purchasers for value, the plaintiff would be in a better position to lead further evidence to disprove their case. There is a presumption regarding service of notice and knowledge, when notice issued to third appellant was returned as “refused”. The appellants are close relatives of defendants 1 and 2. From the over all facts and circumstances, this Court hold that the appellants are not bona fide purchasers for value and that they had knowledge about the suit agreement. In the absence of specific plea in the written statement, this Court cannot deny relief to the plaintiff.
37.In the case on hand, the suit agreement, dated 28.05.2007 is admitted. The validity and enforceability of the said agreement is not questioned. Both defendants 1 and 2 and the defendants 3 to 5 have admitted the genuineness of the transaction and payment of advance. As a matter of record, one of the parties to the agreement executed a sale deed in respect of her 1/3 share. The plaintiff before filing the suit, issued a legal notice on 03.08.2007, not only to defendants 1 and 2, but, also to the fifth defendant, as the plaintiff had some doubt, as the conduct of the defendants 1 and 2, was suggestive of some act to frustrate the contract in collusion with the appellants. http://www.judis.nic.in 32/38 S.A.(MD)No.548 of 2017
38.The notice sent to defendants 1, 2 and 5 were returned with endorsement “refused” and “intimation given unclaimed”. The date specified under the suit agreement, dated 28.05.2007, was 28.09.2007. The written statement was filed by defendants 1 and 2 only on 16.06.2008. The defendants have not raised any plea specifically denying the readiness and willingness pleaded by the plaintiff. The pleading in the plaint show that the plaintiff has pleaded her readiness and willingness in terms of Section 16(C) of Specific Relief Act. Since the suit is filed immediately on the expirary of the period specified in the agreement, the bona fides of the plaintiff cannot be suspected. It is also admitted that the plaintiff deposited the entire balance of Rs.3,86,300/- payable to the defendants 1 and 2 on 16.02.2010.
39.From the written statement filed by the defendants 1 and 2 or by defendants 3 to 5, it is seen that no substantial or valid point is raised in defence. The Courts below have granted equitable relief of specific performance, after considering the entire materials on record, apart from pleadings, and oral evidence let in by the plaintiff in the suit. The appellants http://www.judis.nic.in 33/38 S.A.(MD)No.548 of 2017 expressed a grievance that they were not given sufficient opportunity to substantiate their plea in the written statement. The defendants 1 and 2 have not given any explanation in the written statement, as to why they executed a sale deed in favour of the appellants, even before the time given to the plaintiff for performance of the suit agreement, expired. As it was pointed out earlier, except raising the plea with regard to the Court fee and non joinder of Tmt.Sasikala Devi and the entitlement of plaintiff seeking specific performance in relation to 2/3 share, no valid defence is taken by the defendants. In such circumstances, the question of law raised by the appellants complaining lack of opportunity to the defendants to prove their case, has no substance.
40.The plaintiff has specifically come out with a plea, as to the readiness and willingness in term of Section of 16(C) of Specific Relief Act. In such circumstances, the Court is expected to grant relief, as no substantial prejudice is caused to the defendants 1 and 2 on account of enforcement of the suit agreement. The conduct of the defendants 1 and 2, who executed a sale deed, even before the expiry of time specified in the agreement, shows the credibility of defendants 1 and 2 and http://www.judis.nic.in 34/38 S.A.(MD)No.548 of 2017 their attitude to make an attempt to frustrate the contract for obvious reasons. The defendants 1 and 2 refused to honour the agreement only because the appellants were willing to purchase the share of defendants 1 and 2 for a higher price. The Courts below exercised its discretion based on judicial principles as settled by several precedents. The second notice issued to the fifth defendant was returned unserved with an endorsement “refused”. This suggests that the fifth defendant expected a notice from the plaintiff, as they were negotiating for purchasing the property.
41.From the nature of pleading and evidence, it is also established that the defendants 3 to 5 are not bona fide purchaser for value and that therefore, they are not entitled to the benefit of Section 19 of the Specific Relief Act. In exercise of power under Section 100 of CPC, it is not possible for re- appreciation of evidence. In this case, the Courts below have elaborately discussed all the issues and after considering the entire evidence on record, has found that the plaintiff is entitled to the decree for specific performance. The substantial questions of law raised by the appellants are answered against the appellants and this Court incidently hold that none of the http://www.judis.nic.in 35/38 S.A.(MD)No.548 of 2017 other issues have substance to invalidate the decree granted by trial Court.
42.In view of the decision of this Court in allowing C.M.P. (MD)No.6402 of 2019, the documents mentioned in the list of documents are admitted as additional documents and are marked as Ex-B1 to Ex-B3. However, this Court has already held that these additional documents would only support the case of the plaintiff that the dismissal of the earlier suit will not bar the suit for specific performance and the principle of Order 2 Rule II CPC, cannot be applied in the present case.
43.As a result, the second appeal is dismissed with costs. The judgment and decree in A.S.No.13 of 2013 of learned Additional Judge (Fast Track Court), Palani, dated 04.07.2017 confirming the judgment and decree, dated 30.11.2012 passed in O.S.No.161 of 2007 on the file of Subordinate Court (Kodaikanal Camp), Palani, are upheld with the modification of the judgment and decree of trial Court by directing defendants 1 to 5 to execute the sale deed in favour of plaintiff within a period of three months from the date of receipt of this judgment. The defendants 1 and 2 are entitled to withdraw the amount http://www.judis.nic.in 36/38 S.A.(MD)No.548 of 2017 deposited by plaintiff in Court. The appellants/ defendants 3 to 5 are entitled to recover the amount received by defendants 1 and 2 by way of sale consideration for the sale deed, dated 27.09.2007. Consequently, connected miscellaneous petitions are closed.
Internet : Yes/No 02.06.2020
Index : Yes/No
cmr
To
1.The Additional District Court
(Fast Tract Court), Palani.
2.The Subordinate Court (Kodaikanal Camp), Palani.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 37/38 S.A.(MD)No.548 of 2017 S.S.SUNDAR, J.
cmr Judgment made in S.A.(MD)No.548 of 2017 02.06.2020 http://www.judis.nic.in 38/38