Madras High Court
K.Raju vs P.Ramalingam (Deceased) on 28 March, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2014
CORAM:
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
APPEAL SUIT Nos.646 and 647 of 1987
A.S.No.646 of 1987
1.K.Raju
2.Vijayalakshmi
3.K.Bhimji Sait
4.Velbhai Bhimji
5.B.Ramesh
6.B.Manoharan .. Appellants
vs.
1.P.Ramalingam (deceased)
2.Venkitalakshmi
3.Kuppayammal
4.Kuppathal
5.Nanjammal
6.R.Perumal
7.Vasuki Ramalingam
8.Minor Janaki
9.Minor Janani .. Respondents
(Respondents 7 to 9 brought on record as LRs
of the deceased 1st respondent, and 7th respondent
is appointed as guardian of minor respondents 8 and
9 as per order dated 22.4.1998 in C.M.P.Nos.15310
to 15312 of 1996 and 5879 of 1998 and minors rep.
by their mother 7th respondent.)
A.S.No.647 of 1987
1.K.Raju
2.Vijayalakshmi
3.K.Bhimji Sait
4.Velbhai Bhimji
5.B.Ramesh
6.B.Manoharan .. Appellants
vs.
1.P.Ramalingam (deceased)
2.Venkitalakshmi
3.Kuppayammal
4.Velammal
5.Shanmugha Gounder
6.Nataraja Gounder
7.Minor unnamed son of
Shanmuga Gounder rep.by
Guardian father Shanmuga Gounder
8.Minor Sakthivel rep. by
Guardian father Nataraja Gounder
9.Vasuki Ramalingam
10.Minor Janaki
11.Minor Janani .. Respondents
(Respondents 9 to 11 brought on record as
LRs of the deceased 1st respondent, and 9th
respondent is appointed as guardian to minor
respondents 10 and 11 as per order dated
22.4.1998 in C.M.P.Nos.15313 to 15315 of
1996 and 5878 and 5879 of 1998.)
Minor respondents 10 & 11 rep. by mother
and guardian 9th respondent.)
Appeal Suits filed under Section 96 of the Civil Procedure Code against the judgment and decree dated 25.3.1987 made in O.S.Nos.704 and 707 of 1981 on the file of the Subordinate Judge, Coimbatore.
Mr.T.M.Hariharan : for appellants in both the
Appeals
Mr.R.Subramanian : for Respondent No.2 in
A.S.No.646 of 1987
Mr.R.Subramanian
for Mr.R.S.Thirumavalvan: for Respondent No.2 in
A.S.No.647 of 1987
Mr.S.Mukunth for
M/s.Sarvabhauman
Associates : for Respondent No.6 in
A.S.No.646 of 1987
No appearance : for Respondent Nos.3 to 5, and
7 to 9 in A.S.No.646 of 1987
No appearance : for Respondent Nos.3 to 9
in A.S.No.647 of 1987
COMMON JUDGMENT
Defendant Nos.4, 5, 9 to 12 in O.S.No.704 of 1981 are the appellants in A.S.No.646 of 1987 and Defendant Nos.6 to 12 in O.S.No.707 of 1981 are the appellants in A.S.No.647 of 1987. Both the suits in O.S.No.704 and 707 of 1981 on the file of the Principal Subordinate Court, Coimbatore, were filed for specific performance of an agreement of sale deed dated 16.7.1980 and for permanent injunction.
2. The case of the plaintiffs in O.S.No.704 of 1981 is as follows:-
(a) Late S.N.Ponnuswamy Nadar entered into an agreement of sale with Kuppathal and Nanjammal, defendants 1 and 2, on 16.7.1980 for the purchase of the suit property and in that suit, the defendants 6 to 8, were later impleaded. Sale consideration was agreed at Rs.1,19,500/- and it was agreed that the sale would be completed within a period of 4 months from the date of agreement. The second item of property which is forming part of the first item of property was delivered in part performance of the contract on 7.11.1980 to the first plaintiff S.N.Ponnuswamy Nadar. On the date of agreement, an advance of Rs.5,000/- was paid. On 7.11.1980, the defendants 1 and 2 namely, Kuppathal and Nanjammal requested the first plaintiff to extend time for completing the sale on the ground that there were standing crops on the field and that was agreed on condition of delivering a portion of the suit property and accordingly, the second item of the suit property was delivered to the first plaintiff on 7.11.1980 and time was extended by 10 months and that was also endorsed in the agreement of sale attested by witnesses. Again on 27.8.1981, further extention of time was granted for a period 3 months and that was also endorsed in the agreement of sale. On 6.11.1981, a registered letter was sent by the first plaintiff to the defendants 1 and 2 expressing his readiness to purchase the suit property and demanded the execution of the sale deed by defendants 1 and 2 and that was followed by lawyer's notice on 16.11.1981. Mean while, the first plaintiff came to know that the defendants 1 and 2 fraudulently transferred the suit property in favour of the defendant Nos.3 and 5, namely, R.Perumal, and R.Vijayalakshmi, in collusion with the first appellant herein. The defendants 2 to 5 attempted to interfere with the possession and enjoyment of the second item of the property. Therefore, the suit was filed for relief of specific performance.
(b) The first plaintiff was ready and willing to pay the balance sale consideration and the first plaintiff was having sufficient means for purchasing of stamp paper and other expenses for the due execution of the sale deed and the first plaintiff was willing to deposit the balance sale consideration into the Court. The defendants 1 and 2 are closely related to the defendants 4 and 5. With the intention of defrauding the first plaintiff and to defeat his legitimate rights, a fraudulent sale deed was executed by the defendants 1 and 2 in favour of the defendants 3 and 5. During the pendency of the suit the defendants 9 to 12 having full knowledge of the pending litigation entered into a joint venture by colluding with the defendants 1 to 8 and the defendants 9 to 12 claimed to have purchased the suit property from the defendants 3 to 8. The sale deed was alleged to have been executed in favour of the defendants 9 to 12 and nominal document was created with an intention of giving colour to their fictitious and fraudulent transfer and no consideration was paid towards sale deed and the sale in favour of defendants 9 to 12 was also hit by the doctrine of lis pendens. Therefore, the defendants 9 to 12 were added as parties to the suit. The first plaintiff Ponnuswamy Nadar died on 22.6.1989, leaving behind the plaintiffs 2 to 4 as his legal heirs and therefore, the plaintiffs 2 to 4 are entitled to get the relief of specific performance.
3. The defendants 1 and 2 filed a written statement contending that Ponnuswamy Nadar was a real estate dealer and speculator and he was a neighbour to the defendants and he was also aware of the agreement of sale the defendants 1 and 2 had entered into with the 4th defendant on 27.3.1979. Thereafter, the first plaintiff created the sale agreement in his favour as if the defendants agreed to sell the suit property to him and therefore, the agreement dated 16.7.1980 projected by the first plaintiff for filing the suit for specific performance was not a genuine document and the defendants 1 and 2 entered into an agreement of sale with the 4th defendant on 27.3.1979 which was earlier in point of time and therefore, the first plaintiff cannot claim any right even under the agreement of sale. The first plaintiff also filed a criminal case against the defendants 1 and 2 for cheating and the defendants were convicted by the trial court and later acquitted in the appeal. Even in the criminal proceedings, genuineness of the agreement of sale dated 16.7.1980 was challenged by the defendants 1 and 2. Therefore, the defendants 1 and 2 are not liable to execute any sale deed and the plaintiffs are not entitled to the relief of specific performance.
4. The 4th defendant filed a written statement stating that the suit filed by the plaintiff is vexatious, false and liable to be dismissed. He questioned the truth, validity and genuineness of the agreement of sale dated 16.7.1980 alleged to have been entered into between the first plaintiff and the defendants 1 and 2 for the sale consideration of Rs.1,19,500/- and also the endorsement made on the agreement of sale and parting of possession of second item of property. The plaintiffs are not in possession of any portion of the suit property and there was no necessity to ask for extention of time to deliver possession and there was no agreement of sale between the first plaintiff and the defendants 1 and 2. The 4th defendant filed a suit in O.S.No.582 of 1981 on the file of the Subordinate Court, Coimbatore for specific performance of his agreement of sale dated 27.3.1979 and the defendants 1 and 2 entered appearance in that suit and under the agreement of sale dated 27.3.1979, an advance of Rs.60,000/- was paid by the fourth defendant and the sale consideration was fixed at Rs.1,75,000/- and possession was handed over to the 4th defendant in part performance of the agreement of sale and therefore, the 4th defendant is in absolute possession and enjoyment of the suit property. As the defendants 1 and 2 did not come forward to receive the balance sale consideration and execute the sale deed, the 4th defendant sent a notice dated 11.6.1981 by registered post calling upon the defendants 1 and 2 to receive the balance sale consideration and execute the sale deed. As there was no response to the notice, the fourth defendant filed the suit in O.S.No.582 of 1981 for specific performance. In that suit, I.A.No.794 of 1981 was filed for injunction and that was also granted and that would also prove that the 4th defendant was in possession of the suit property. After entering appearance in the suit O.S.No.582 of 1981, the defendants 1 and 2 demanded Rs.20,000/- more and after negotiation, the 4th defendant agreed to pay Rs.10,000/- and thereafter, two sale deeds were executed by the defendants 1 and 2 in favour of the defendants 3 and 5 as per the direction of the 4th defendant and thereafter, the first plaintiff in collusion with the defendants 1 and 2 filed the suit to defeat the rights of the defendants 3 to 5. The 4th defendant also issued a paper publication in "Malai Malar" dated 11.11.1981 informing the public about the sale deed in favour of the defendants 3 & 5. The plaintiff is a very close family friend of the defendants 1 and 2 and all of them colluded and created the agreement of sale dated 16.7.1980 to cause loss to the defendants 3 to 5. The defendants 3 and 5 are bona fide purchasers for value and therefore, they are entitled to get protection and they have no knowledge of the agreement of sale dated 16.7.1980. It is also stated that the agreement of sale in favour of the 4th defendant was earlier in point of time and the sale deed was executed after the alleged agreement of sale dated 16.7.1980 was created in favour of the first plaintiff. Therefore, the plaintiffs are not entitled to the relief of specific performance.
5. The 6th defendant filed a statement and that was adopted by the defendants 7 and 8. The 6th defendant is the son-in-law of Venkatachala Goundar and Venkatachala Goundar had two wives, namely, Muthakkal and Kuppathal. Muthakkal was the senior wife and she had 2 daughters and the 6th defendant married second daughter - Vishathal and the defendants 7 and 8 are his sons. During the life time of Venkatachala Goundar, when he fell sick, the 6th defendant as the first son-in-law was taking care of the properties. Venkatachala Gounder and the 6th defendant and family of defendants 1 and 2 were enjoying the properties in common and they were living as joint family. Therefore, the suit properties are in possession of the defendants 1 and 2 and defendants 6 to 8 and the second defendant is the younger brother's wife of the 6th defendant. After the death of Venkatachala Gounder, the defendants 6 to 8 along with the defendants 1 and 2, are entitled to equal half share in the properties of Venkatachala Gounder and the defendants 1 and 2 started dealing with the entire properties as if they are the only heirs of Venkatachala Gounder and created the sale deed in favour of the defendants 3 and 5 and also executed alleged agreement of sale in favour of the first plaintiff. The defendants 6 to 8 are entitled to half share in the suit properties and therefore, they are not bound by the agreement of sale executed by the defendants 1 and 2 in favour of the defendants 3, 4 and 5. Agreement of sale dated 16.7.1980 alleged to have been executed by the defendants 1 and 2 was fraudulent and was created to defeat the rights of the defendants 6 to 8. The alleged surrender of possession of second item by the defendants 1 and 2 in favour of the first plaintiff was not true and the defendants 6 to 8 are in joint possession of the entire suit property along with the defendants 1 and 2 and the defendants 1 and 2 have no right to deal with the half share of the defendants 6 to8 and the sale in favour of the defendants 3 and 5 and the agreement of sale dated 16.7.1980 in favour of the first plaintiff are not binding on the defendants 1 to 8. Therefore, the suit is liable to be dismissed.
6. The 9th defendant filed a statement and the same was adopted by the defendants 10 to 12. The defendants 9 to 12 purchased properties from the defendants 3 to 5 under 5 different sale deeds for a consideration of Rs.2,00,200/- and the defendants are bona fide purchasers of the suit properties for valid consideration. The agreement of sale dated 16.7.1980 was created for the purpose of defeating the right of the defendants 9 to 12 and they also adopted the statement of defendants 1 to 5.
7. On the above said pleadings, the following issues were framed:-
(1) Whether the sale agreement dated 16.7.1980 is true and enforceable?
(2) Whether the plaintiff is entitled to get a sale of item-1 of the suit property from defendants 1 to 5 as stated in paragraph 19A of the written statement?
(3) Whether the plaintiff is entitled to permanent injunction regarding item No.2 of the suit property?
(4) Whether the sale agreement deed dated 27.3.1979 entered into between defendants 1 and 2 and 4th defendant is true?
(5) Whether the sale deeds executed in pursuance of the said agreement are true, valid and binding with the plaintiff?
(6) To what relief the plaintiff is entitled ?
8. On 24.1.1986, the following additional issue was framed:-
Whether the defendants 6 to 8 are entitled to any share in the suit property? Whether the suit agreements would bind them?
9. The plaint allegation in O.S.No.707 of 1981 is almost identical with the plaint allegations in O.S.No.704 of 1981 and in that suit, agreement of sale was entered into by the defendants 1 to 5 with the first plaintiff on 16.7.1980 and the consideration was fixed at Rs.1,19,500 and 4 months time was fixed for completing the sale transaction. An advance of Rs.5,000/- was paid and on 7.11.1980, the defendants 1 to 5 requested the first plaintiff to extend the time by 10 months on the ground that there were standing crops and that was agreed, and 25 cents of the property was delivered to the first plaintiff on 7.11.1980 and that property has been shown as item No.2. Again, on 27.8.1981, the defendants 1 to 5 sought for further extention of time for 3 months and that was also agreed and both were endorsed in the agreement of sale. The first plaintiff was ready and willing to purchase the suit property but the defendants 1 to 5 were not ready and therefore, notice dated 16.11.1980 was issued by the first plaintiff to the defendants 1 to 7 demanding execution of sale deed. Thereafter, the defendants 1 to 5 sold the property to the defendants 6 and 7 and the defendants 1 to 5 have no right to sell the property after having entered into an agreement of sale with the first plaintiff on 16.7.1980 and the sale deed in favour of the defendants 6 and 7 are also not binding on the first plaintiff. The defendants 6 and 7 in collusion with the defendants 1 to 5 created sale deed in their favour. The first plaintiff was also ready to deposit sale consideration, if so directed by the court. The defendants 1 to 5 are closely related to the defendants 6 and 7 and, in order to defraud the first plaintiff and to defeat the legitimate right of the first plaintiff, the sale deeds were executed in favour of the defendants 6 and 7. The defendants 8 to 11 claimed to have purchased the suit properties from the defendants 6 and 7 and those sale deed in favour of the defendants 8 to 11 are nominal document and they have not come into force and there was no passing of consideration and as the properties were alleged to have been conveyed to the defendants 8 to 11, they were also made as parties. The first plaintiff died and the plaintiffs 2 to 4 were impleaded as legal representatives and they were also entitled for specific performance and injunction in respect of item 2 of the property.
10. The defendants 1 to 3 filed a statement stating that the first plaintiff was a real estate dealer and a speculator and he was a neighbour of the defendants and he was aware of the agreement between the defendants 1 to 5 entered into with the 6th defendant on 27.3.1979. Thereafter, the first plaintiff created agreement of sale to defeat the right of the defendants 1 to 3. The first plaintiff also filed a criminal complaint against the defendants 1 to 3 for the the offence of cheating and the defendants 1 to 3 were convicted by the trial Court and the conviction was set aside in the appeal and in the criminal proceedings, the defendants 1 to 3 questioned the genuineness of the agreement dated 7.11.1980. Therefore, the plaintiffs are not entitled for the relief prayed for.
11. The Court Guardians of the defendants 4 and 5 filed a statement denying the agreement of sale dated 16.7.1980. It is stated that the defendants 6 and 5 are minors on that date and therefore, they are not bound by the agreement of sale. The agreement was not for the benefit of the minors. No permission was obtained from the Court for entering into an agreement of sale. They also denied the allegation that on 7.11.1980 possession of 25 cents of property was given to the first plaintiff and questioned the means of the first plaintiff to pay the balance sale consideration. Therefore, the plaintiffs are not entitled to the relief of specific performance. The 6th defendant in O.S.No.707 of 1981 filed a written statement and the same was adopted by 7th defendant and the 4th defendant in O.S.No.704 of 1981 is the 6th defendant in O.S.No.707 of 1981 and he repeated the same allegations in the statement filed in O.S.No.704 of 1981 in the present suit. If is further stated that pursuant to the agreement of sale dated 27.3.1979 between the defendants 1 to 5 and the 6th defendant, two sale deeds dated 22.10.1981 and exchange deeds dated 19.10.1981 and 22.10.1981 were executed. The defendants 1 to 5 were demanding Rs.20,000/- over and above the agreed price in the agreement of sale dated 27.3.1979 and at the intervention of panchayatdars, they received Rs.10,000/- and executed document in favour of the defendants 6 and 7. It is also contended that the suit filed by the first plaintiff is a collusive suit and the first plaintiff and the defendants 1 to 5 are closely related and in order to defeat the rights of the defendant 6 and 7, the present suit was filed. The agreement of sale dated 16.7.1980 was also not genuine and the endorsements made on the agreement were also forged and created for the purpose of this case and no part of the property was given to the first plaintiff on 7.11.1980 and the plaintiffs were not having means to pay the balance sale consideration as per the agreement of sale and therefore, the suit is liable to be dismissed.
12. The 8th defendant filed a statement which was adopted by the defendants 9 to 11. They purchased the suit property from the defendants 6 and 7 under 5 different sale deeds and therefore, they are the bona fide purchasers for value and they were not aware of the sale deed 16.7.1980 between the fist plaintiff and the defendants 1 to 5. Therefore, their sale cannot be impeached and the suit is liable to be dismissed.
13. On the above said pleadings, the following issues were framed:
(1) Whether the sale agreement dated 16.7.1980 is true and enforceable?
(2) Whether the plaintiff is entitled to get the sale of item -1 of the suit property from the defendants 1 to 11?
(3) Whether the plaintiff is entitled to the relief of permanent injunction regarding item No.2 of the suit property?
(4) Whether the agreement deed dated 27.3.1979 executed between defendants 1 and 2 and 6th defendant is true? Whether the sale deeds executed in pursuance of the said agreement are true and binding upon the plaintiff?
(5) Whether the sale agreement dated 16.7.1980 would bind the defendants 4 and 5?
(6) To what relief is the plaintiff entitled?
14. The defendants 6 to 8 in O.S.No.704 of 1981 also filed O.S.No.190 of 1982 on the file of the principal Subordinate Court, Coimbatore for partition and separate possession of the suit property against the defendants in O.S.No.704 of 1981 and 707 of 1981. All the 3 suits namely, O.S.Nos.190 of 1983, 704 of 1981 and 707 of 1981 were tried together and the evidence taken in O.S.No.704 of 1981 is treated as common evidence in all the three suits. O.S.No.190 of 1983 was dismissed and we are not concerned with the said suit and therefore, there is no need to refer to the finding in respect of the issues framed in O.S.No.190 of 1983.
15. On the side of the plaintiffs, 8 witnesses were examined and 64 exhibits were marked. On the side of the defendants 6 witnesses were examined and 30 documents were marked. Two documents were marked as Court documents, namely, X-1 and X-2.
16. The trial Court tried Issues Nos.(1) and (4) in O.S.No.704 and 707 of 1981 together and held that the agreement of sale dated 16.7.1980 entered into between the first plaintiff and the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 5 in O.S.No.707 of 1981 were genuine agreement of sale and as per the agreement of sale, time was extended on 7.11.1980 and the endorsement made on the agreement of sale were also genuine endorsements and agreements of sale dated 27.3.1979 Ex.B.19 was a created document by ante-dating the same. Exs.A.5 and A.6 are the two agreements of sale deeds dated 16.7.1980 and in those 2 documents, it has been specifically stated that the son born to Shanmugam Gounder was not named and the unnamed child was represented by the father Shanmugam Gounder. In Ex.B.19, the agreement of sale dated 27.3.1979, minor was given name as Balasubramanian and if really, the minor son of Shanmugam Gounder, who is the 4th executant in the agreement of sale in Exs.A.5 and A.6, was named on 27.3.1979 as stated in Ex.B.19, minor's name would have been mentioned in Exs.A.5 and A.6 and the fact that in Exs.A.5 and A.6, it has been specifically stated that the minor son of Shanmugam Gounder was not given any name would prove that Ex.B.19 was fabricated after coming to know of the agreement Exs.A.5 and A.6. It has been specifically stated that the minor son of Shanmugam Gounder was not given any name in Exs.A.5 and A.6 would prove that Ex.B.19 was fabricated after coming to know the agreement Exs.A.5 and A.6 in favour of the defendants 1 and 2 and 1 to 5. The trial court also held that before filing O.S.No.582 of 1981, the 4th defendant in O.S.No.704 of 1981 and the 6th defendant in O.S.No.707 of 1981 did not issue any notice and even though the suit was filed for specific performance and even after getting interim injunction, the said plaintiff, namely, Raju, allowed the suit to be dismissed as settled out of court. The defendants in O.S.No.582 of 1981 did not file any statement and they accepted the sale deed in favour of the defendants 3 and 5 in O.S.No.704 of 1981 and that would also prove the collusiveness between the defendants 1 and 2 and 4th defendant in O.S.No.704 of 1981 and the suit O.S.No.582 of 1981 was also a collusive suit. The trial court also held that the 4th defendant gave prevaricating answers regarding his source and means to pay the balance sale consideration and the 4th defendant was employed in the Tamil Nadu Electricity Board and as per Ex.X.1, he ought to have disclosed his source to the competent authority before entering into the transaction and obtained permission from the Head of the Department but he has not obtained any permission for entering into agreement of sale and he has also not disclosed about the agreement of sale to his department. The defendants 1 and 2 in O.S.No.704/1981 and the defendants 1 to 5 in O.S.No.704 of 1981 are closely related to the plaintiff in O.S.No.582 of 1981 and 4th defendant in O.S.No.704 of 1981. The evidence of DWs.4 to 6 are mutually contradictory and as per Ex.B.19 the sale deed ought to have been executed only in favour of 4th defendant but under Ex.A.22, 1.5 acres of land was conveyed to 5th defendant and the 4th defendant obtained original Ex.A.23 exchange deed from the defendants 1 and 2 in O.S.No.704 of 1981 and original Ex.A.24 exchange deed from the defendants 1 to 5 in O.S.No.707 of 1981 and there was no clause for the execution of exchange deed in Ex.B.19 agreement of sale between the 4th defendant and the defendants 1 and 2. Exs.A.61 and 62 would also prove that the 4th defendant had given lands of lesser value for getting exchange vide Exs.B.22 and 23 and that would also prove that 4th defendant was not having sufficient means to pay the balance sale consideration. Exs.A.25 to 28 are the extracts of Adangal and that would also prove that 4th defendant was not in possession of the property at any point of time. In the criminal case initiated by the first plaintiff against the defendants 1 and 2 when they were questioned under Section 313 Cr.P.C., they admitted the execution of agreement of sale in favour of the first plaintiff dated 16.7.1980 and therefore, it is not open to the defendants 1 and 2 to contend now that the agreements of sale Exs.A.5 and A.6 are not genuine documents and are fabricated. Exs.A.15 and A.18 notices were sent by the first plaintiff and there was no reply and therefore, it cannot be contended by the defendants 1 to 5 that the agreement of sale dated 16.7.1980, namely, Exs.A.5 and A.6 are fabricated. The defendants 1 and 2 purposely avoided the witness box as they were aware that they would be questioned with regard to Exs.A.30 to 36 and therefore, they did not come forward to examine themselves and considering Exs.A.30 to A.36, the defendants' case cannot be believed and the plaintiffs case can be believed and the trial court believed PWs.1 to 3 and held that the agreements of sale dated 16.7.1980 are a genuine document and Ex.B.19 agreement of sale was fabricated and answered Issues 1 to 4 in favour of the plaintiff.
17. Consequent to the finding given in respect of Issues (1) and (4), Issue No.(2) in both the suits were also answered in favour of the plaintiffs holding that the plaintiffs are entitled to get the sale deed of the suit property from the defendants 1 to 11.
18. Issue No.(3), in both the suits were tried and the trial Court held that the first plaintiff was found to be in possession of Item 2 of the property and therefore, the plaintiffs are entitled to the relief of injunction in respect of Item 2.
19. Issue No.(5) in O.S.No.707 of 1981 was answered holding that Ex.A.6 executed by defendants 4 and 5, are binding on the minors even though they were minors at that time.
20. In the result, the suit in O.S.Nos.704 and 707 of 1981 were decreed as prayed for. Aggrieved by the decree passed in O.S.Nos.704 and 707 of 1981, Appeals in A.S.Nos.646 and 647 of 1987 were filed and against the dismissal of O.S.No.190 of 1983, A.S.No.286 of 1988 was filed and all the appeals were initially heard together and by a common judgment dated 18.12.1998, A.S.No.286 of 1988 was dismissed and A.S.Nos.646 and 647 of 1987 were allowed.
21. The plaintiffs filed L.P.A. Nos.30 and 31 of 1999 against the judgment and decree dated 18.12.1998 made in A.S.Nos.646 and 647 of 1987. The Hon'ble Division Bench of this Court by judgment dated 9.3.2004 allowed the L.P.A. and set aside the judgments in A.S.Nos.646 and 647 of 1987 confirmed the decree in O.S.No.704 and 707 of 1981.
22. The present appellants filed SLP before the Hon'ble Supreme Court challenging the judgment rendered in LPA Nos.30 and 31 of 1999 and the Hon'ble Supreme Court set aside the judgment rendered LPA Nos.30 and 31 of 1999 and remanded the case to this Court to be heard by the learned single Judge and in these circumstances, these appeals were posted before me.
23. Mr.T.M.Hariharan, learned counsel for the appellants submitted that the trial Court without properly appreciating the scope of specific performance suit, misdirected itself and gave a finding that Ex.B.19 agreement between the first appellant and the co-owners of the property dated 27.3.1979 was a fraudulent document, executed to defeat the rights of the plaintiffs in both the suits and thereafter decreed the suits holding that the plaintiffs proved execution of the agreement of sale Exs.A.5 and 6 and also proved their readiness and willingness. The trial court failed to appreciate the conduct of the plaintiffs and the inconsistency in the evidence of PWs.1 to 3 and the false case projected by the plaintiffs. He submitted that the trial Court failed to appreciate that Exs.A.5 and 6 are dated 16.7.1980 and those documents were executed on stamp paper of the year 1977 and no acceptable explanation was given by the plaintiffs for executing the agreement in the year 1980 on stamp paper purchased in the year 1977. He submitted that PW.1 explained the reason for using 1977 stamp paper stating that in that year, namely, 1977, he purchased a thopu and at that time, he purchased the stamp papers and after utilising the stamp papers for the execution of the sale deed in respect of thopu lands, two stamp papers were left with him and those two stamp papers were used for writing Exs.A.5 and A.6. The explanation was also falsified by the evidence of PW.1 and PW.1 admitted that he purchased the thopu property in the year 1979 as evidenced by Exs.A.44 to 46 and therefore, the explanation given by PWs.1 and 5 that the unused stamp papers purchased for purchasing the thopu land were used for writing Exs.A.5 and A.6 must be a false one. He also submitted that in a suit for specific performance, the plaintiff must come to Court with clean hands and he should not have suppressed any material facts and being a discretionary relief, if the plaintiffs are found to be guilty of fraud or misrepresentation, the Court need not grant the relief of specific performance.
24. Mr.T.M.Hariharan, learned counsel, further elaborated his arguments stating that it is the case of the plaintiffs that the owners of the property, namely, defendants 1 and 2 in O.S.No.704 of 1981 and defendants 1 to 3 in O.S.No.707 of 1981 approached him in November 1980 and pleaded for 10 months' time to execute the sale deed on the ground that there were standing sugar cane crops in the suit property which were agreed to be conveyed. It is the further case of the plaintiffs that similar request was made on 27.8.1981 by the owners for extention of the period by 3 more months and while demanding extention for 10 months, the first plaintiff reluctantly agreed on condition of taking possession. Therefore, the defendants 1 and 2 in O.S.No.704 of 1981 gave possession of 25 cents of land lying East of the house and the defendants 1 to 3 in O.S.No.707 of 1981 granted possession of 25 cents along with row buildings out of the total extent of the suit properties. He submitted that agreements of sale Exs.A.5 and A.6 are dated 16.7.1980 and it is not the case of the plaintiffs that on the date of agreement, there were standing crops in the suit properties. As a matter of fact, it is admitted by the son of the first plaintiff who is the second plaintiff that there were no standing crops in the suit properties on the date of execution of Exs.A.5 and 6. It is further stated by PWs.2, 3 and 5 that when the owners pleaded for 10 months' time on the ground that there were standing crops and made an endorsement Exs.A.7 and 8 on 7.11.1980, the standing crops were 5 months old in the suit property. If the standing crops were 5 months old on 7.11.1980, those crops must have been planted in June, 1980 and on the date of agreement of sale, there must be standing crops and if there were standing crops, the parties would have definitely mentioned about the same and would not have agreed to complete the transaction within 4 months' period as sugar cane cannot be harvested within 5 months and it is a one year crop. Therefore, when the parties agreed to complete the transaction within a period of 4 months, it would lead to the presumption that there could not be any standing crops on the date of execution of Exs.A.5 and A.6 and that was also admitted by PW.5. If there had been no standing crops in the field, there was no necessity for getting extention of time by the owners for completing the sale for a period of 10 months by stating that there were standing crops. He, therefore, submitted that the reason for extending the period by 10 more months and the endorsement to that effect appears to be suspicious. Similarly, if the case of the plaintiffs is accepted, then the standing crops would have been harvested by June, 1981 and there could not be any necessity for seeking 3 more months time for execution of the sale deed on the ground that due to rain, harvesting could not be done. Learned counsel appearing for the appellants, Mr.T.M.Hariharan, therefore, submitted that the conduct of the plaintiffs in attempting to give explanation for the delay in execution of the sale deed by putting the blame on the owners and the reasons stated therefore cannot be accepted and the specific case of the appellants is that the agreement of sale Exs.A.5 and A.6 and endorsement made thereon, namely, Exs.A.7 to 10 were all forged and the conduct of the plaintiffs would also confirm the same.
25. The learned counsel for the appellants further submitted that possession could not have been given to the plaintiffs as per the endorsement made in Exs.A.7 and A.8. The learned counsel submitted that in Exs.A.7 and A.8, only an extent was given. It is not known out of the total extent of 3.09 acres and 2.35 acres, which extent of 30 cents and 25 cents were given to the first plaintiff. He, therefore, submitted that in the absence of any boundary recitals would only prove that the possession could not have been given as alleged by the plaintiffs. He further submitted that against the sale consideration of Rs.1,19,500/-, the plaintiffs paid an advance of Rs.5,000/- and the balance amount represents more than 90% of the sale consideration and in such circumstances, no owner would have delivered vacant possession of any extent. He also submitted that possession was not given to the plaintiffs was also proved by Exs.A.25 and A.26. Exs.A.25 and A.26 are the Adangal Extracts in respect of the suit properties and it is seen from Ex.A.25 Adangal for the fasli year 1389, out of the total extent of 5.58 acres in Survey No.581/B1, coconut trees were planted in 50 cents, sugarcane was planted in 4.80 acres. He also submitted that there is a well in Survey No.581/B1 over an extent of 14 cents. Therefore, the land available for cultivation is 5.44 acres and out of that 5.44 acres, coconut trees and sugarcane were cultivated in an extent of 5.30 acres and therefore, 30 cents land could not have been delivered to the plaintiff while making endorsement under Ex.A.7. He also submitted that similarly under Ex.A.26, Adangal extract for the fasli year 1390, coconut was plated in 30 cents in Survey No.581/B1 and sugarcane was cultivated in 5 acres. Therefore, out of the total extent of 5.58 acres, 5.30 acres were used for coconut and sugar cane cultivation and the well occupies 14 cents and therefore, even in the fasli year 1390, 30 cents could not have been delivered possession. He also submitted that the entire 88 cents in Survey No.582/B was sugarcane cultivation. Therefore, the plaintiffs could not have been given possession of 30 cents and 25 cents in the suit properties. He, therefore, submitted that the plaintiffs' case was not properly appreciated by the trial Court.
26. The learned counsel also submitted that possession could not have been given as alleged by the plaintiffs under Exs.A.7 and 8 and relied upon Exs.A.11 and 13 the letters sent by the first plaintiff to the owners demanding execution of the agreement of sale. In that letters, namely, Ex.A.11, and A.13, he did not mention about the factum of handing over of delivery of possession in respect of 30 cents and 25 cents along with row of houses and, on the other hand, he demanded recovery of possession. It is also admitted by PW.1 that Exs.A.11 and A.13 were drafted by the counsel and therefore, if really possession had been given to the first plaintiff as per Exs.A.7 and A.8, definitely, he could have mentioned the same in his letter dated Exs.A.11 and A.13, especially, when those letters were drafted by the counsel and in the absence of any recital regarding possession being handed over and also the request for delivery of possession in those letters would falsify the case of the plaintiffs that possession of some extent of property was given to them while executing Exs.A.7 and A.8.
27. He further submitted that the evidence of PWs.1, 2, 3 and 5 regarding the possession of specific extent of property was also contradicted by Exs.A.7 and A.8. According to Ex.A.7, the defendants 1 and 2 in O.S.No.704 of 1981 gave possession of 30 cents of land, which is lying East of the house and according to Exs.A.8, the defendants 1 to 3 handed over possession 25 cents with row of the houses. But, in the evidence, witnesses stated that defendants 1 and 2 in O.S.No.704 of 1981 gave possession of 25 cents and defendants 1 to 3 in O.S.No.707 of 1981 gave possession of 30 cents. Therefore, the evidence of PWs.1 to 3 and 5 are contrary to the recitals of Exs.A.7 and A.8. Therefore, the plaintiffs failed to prove that possession of some extent of property was given to them under Exs.A.7 and A.8. He, therefore, submitted when possession was not given, the plaintiffs had come out with a false case. Therefore, the discretionary relief of specific performance should not be given to the plaintiffs.
28. Mr. T.M.Hariharan, learned counsel appearing for the appellants further submitted that the plaintiffs were not ready and willing to perform their part of the contract. Though the witnesses PWs.1 to 5 claimed that the first plaintiff was getting the annual income of more than Rs.1,00,000/-, no materials were placed to substantiate the same. He also submitted that Ex.A.29 was relied upon by the plaintiffs to prove their means and a perusal of Ex.A.29 would only prove that the plaintiffs were not having sufficient means to proceed with the same. He submitted that Bank Account was opened on 23.11.1981 by depositing Rs.300/- and on 25.11.1981, a sum of Rs.2,40,000/- was deposited by transfer and the suit was filed on 26.11.1981. He therefore submitted that to create an impression that the plaintiff was having sufficient means, the first plaintiff was able to arrange the deposit of Rs.2,40,000/- one day prior to the filing of the suit and subsequently, that amount was also withdrawn and except the deposit of Rs.2,40,000/-, no materials were furnished to prove that the first plaintiff was having means to pay the balance sale consideration. He submitted that in a suit for specific performance, the plaintiff must be ready from the date of entering into sale transaction to complete the sale and except Ex.A.29 Pass Book, no document was produced to prove the means of the plaintiff and therefore, it cannot be stated that the first plaintiff was having the means to pay the sale consideration.
29. He also submitted that the trial Court failed to appreciate the evidence of PW.2 in a proper perspective and if the evidence of PW.2 is read as a whole, that would also prove that Exs.A.7 to 10 would not have been written in the manner as alleged by PW.1. He also submitted that the trial Court gave importance to Exs.A.32 to 36 the answers given by the owners in the criminal proceedings initiated by the first plaintiff. The learned counsel submitted that the statement of the accused while answering question under 313 Cr.P.C. cannot be treated as evidence and the trial court erred in relying upon those documents to arrive at a conclusion that the owners admitted the execution of Exs.A.5 and A.6 before the criminal courts. He submitted that the defendants 1 and 2 in O.S.No.704 of 1981 admitted in Exs.A.32 and 33 their signature in the agreement but denied the execution of any agreement as alleged by the first plaintiff. He also submitted that even though the defendants 1 to 3 in O.S.No.707 of 1981 admitted the signature in Ex.A.6 that admission cannot be taken inasmuch as those admissions have no evidentiary value and relied upon the judgments reported in 2011 (4) SCC 786 [State of Madhya Pradesh v. Ramesh and another] and AIR 2010 Supreme Court 3594 [Dehal Singh v. State of Himachal Pradesh]. He also submitted that the owners, namely, the defendants 1 and 2 in O.S.Ns.704 of 1981, the defendants 1 to 5 in O.S.No.707 of 1981 entered into an agreement of sale with K.Raju, the first appellant agreeing to sell the entire suit properties covered under the two suits and that document is admittedly earlier in point of time of Exs.A.5 and A.6. The first appellant also filed a suit in O.S.No.582 of 1981 to enforce that agreement and thereafter the parties arrived at a compromise and the owners agreed to execute the sale deed in respect of certain portions and agreed to exchange with the prospective purchasers in respect of remaining portion and the sale deed and exchange deeds are marked as Exs.A.21 to 24 and though the documents were executed prior to the filing of the suit in O.S.Nos.704 and 707 of 1981, but they were executed after executing Exs.A.5 and A.6. Nevertheless, he submitted that those sale deeds were executed pursuant to the agreement of sale Ex.B.19 equivalent to Ex.A.39 and therefore, the appellants are bona fide purchasers for value without notice of the earlier agreement of sale and this aspect was not at all considered by the trial Court while granting decree in favour of the plaintiffs. He submitted that when the bona fide purchasers purchased property for valuable consideration without notice of the earlier agreement of sale, their sales are to be protected. He submitted that under Section 19(b) of the Specific Relief Act, 1963, specific performance contract may be enforced against any other person claiming under a party to the contract by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Absolutely, no materials were filed by the plaintiffs to prove that the appellants were aware of Exs.A.5 and A.6 and no evidence was let in to impeach Ex.A.21 to 24. Therefore, the appellants being bona fide purchasers for the value without notice of the suit agreements Exs.A.5 and A.6, a relief of specific performance cannot be enforced against them.
30. He also relied upon the following judgments in support of his contention.
(i) State of Madhya Pradesh v. Ramesh and another [(2011) 4 SCC 786] (ii) J.P.Builders and another v. A.Ramadas Rao and another [(2011) 1 SCC 429] (iii) Dehal Singh v. State of Himachal Pradesh [AIR 2010 SUPREME COURT 3594] (iv) Man Kaur (dead) by LRs. v. Kartar Singh Sangha [(2010) 10 SCC 512) (v) Inderchand Jain (dead) through LRs v. Motilal (dead) through LRs [(2009) 14 Supreme Court Cases 663] (vi) H.P.Pyarejan v. Dasappa (Dead) by LRs and others [(2006) 2 SCC 496] (vii) Manjunath Anandappa URF Shivappa Hanasi v. Tammanasa and others [(2003) 10 SCC 390] (viii) Pushparani S.Sundaram and others v. Pauline Manomani James (Deceased) and others [(2002) 9 SCC 582] (ix) Ram Awadh (dead) by LRs and others v. Achhaibar Dubey and another [(2000) 2 SCC 428] (x) Lourdu Mari David and others vs. Louis Chinnaya Arogiaswamy and others [(1996) 5 SCC 589] (xi) N.P.Thirugnanam (dead) by LRs v. Dr.R.Jagan Mohan Rao and others [(1995) 5 SCC 115] 31. The learned counsel for the appellants, therefore, submitted that having regard to the evidence of PWs.1 to 3 and PW.5 and the writing of Exs.A.5 and A.6 on a stamp paper of the year 1977, no proof of handing over possession and no acceptable explanation for granting extention of time at the instance of the owners when, admittedly, there was no standing crops and the failure to prove the means would disentitle the plaintiffs from claiming the relief of specific performance. He also submitted that having regard to the long lapse of time and the fact that against the consideration of Rs.1,19,500/- only Rs.5,000/- was paid by the plaintiffs and subsequently, properties were sold to the appellants and thereafter, by the appellants to the other parties during the pendency of the suit, the hardship that may be arising in favour of the appellants would be more than the benefit that may be accrued to the plaintiffs. Therefore, the discretionary relief for specific performance cannot be claimed by the plaintiffs and no prejudice would be caused to the plaintiffs if the suit is dismissed and, on the other hand, if the suit is decreed, the appellants would be put to serious loss and hardship. He, therefore, submitted that the Judgment and decree of the trial Court are liable to be set aside and the appeals are to be allowed. 32. On the other hand, Mr.R.Subramanian, learned counsel appearing for the second respondent submitted that the trial Court rightly considered both oral and documentary evidence adduced by both the parties and came to the conclusion that Exs.A.5 and A.6 were executed by defendants 1 and 2 and defendants 1 to 5 respectively and the agreement of sale projected by the fourth defendant, the first appellant herein, must have been fabricated to defeat the rights of the plaintiffs and Exs.A.7 to A.10 were proved to have been executed by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 and decreed the suit in favour of the plaintiffs. He submitted that though the defendants 1 and 2 filed the statement disputing the agreement of sale in favour of the plaintiffs vide Exs.A.5 and A.6, thereafter, the did not participate in the suit by examining themselves to substantiate their allegation. They are the competent persons to speak about the agreement and when they avoided the witness box, a presumption can be drawn against them that they have executed the agreement of sale in favour of the plaintiffs and that was properly appreciated by the trial Court. He further submitted that in Exs.A.5 and A.6, the fourth defendant in O.S.No.707 of 1981 was unnammed but in Ex.A.39, the agreement of sale in favour of the fourth defendant, the minor boy was named as Balasubramanian and according to the defendants Ex.A.39 was executed on 27.3.1979 earlier to the suit agreement of sale dated 16.7.1980 and if the fourth defendant had been named in the year 1977 itself, his name would have been mentioned in Exs.A.5 and A.6 and that would prove that Exs.A.5 and A.6 were executed and Ex.A.39 was created later. He also submitted that the execution of Exs.A.5 and A.6 were admitted by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in OS..No.707 of 1981 in Exs.A.32 to 36 and therefore, it is not open to the defendants now to contend that Exs.A.5 and A.6 were not executed by the defendants. He submitted that the plaintiffs filed a criminal case for cheating against the defendants 1 and 2 in OS..No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 and in that criminal proceedings, the accused namely, the defendants aforesaid were questioned specifically with regard to the execution of agreement of sale and therefore, the admission of the defendants regarding the execution of Exs.A.5 and A.6 and non-examination of the defendants 1 and 2 and the defendants 1 to 3 in the respective suits would lead only to the conclusion that the agreement of sale were proved by the plaintiffs and that was rightly appreciated by the court below.
33. Mr.R.Subramanian, learned counsel appearing for the second respondent further submitted that though the first appellant/the fourth defendant claimed that the properties were sold pursuant to Ex.A.39, admittedly, the suit filed by him for specific performance was settled out of Court and he entered into an exchange with the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 and thereafter entered into an agreement of sale in respect of remaining extent and the suit filed by him in O.S.No.582 of 1981 was only a make belief affair to give authenticity and the trial Court held that Ex.A.39 could not have been executed on the date alleged and the fourth defendant did not have the means to pay the consideration as alleged for purchasing the suit properties. The trial Court rightly appreciated Exs.X.1 and X.2 and came to the conclusion that the fourth defendant who was an employee of the Tamil Nadu Electricity Board did not obtain permission from the Court to purchase the suit property and he did not disclose the means in his statement of assets and he has given contradictory version regarding his source for payment of advance of Rs.60,000/- and the amount of Rs.50,000/- his wife was having and therefore, rightly held that the agreement Ex.A.39 would have been created for the purpose of defeating the rights of the plaintiffs and Exs.A.5 and A.6 were proved through PWs.1 to 4 and PWs.2 and 3 are the attesting witnesses to Exs.A.5 and A.6 and A.7 to A.10. He also submitted that the evidence of DW.4 to DW.6 are mutually contradictory regarding the talks for conclusion of Ex.A.39 document and though the first appellant agreed to purchase the suit property as per Ex.A.39, he entered into an exchange deed Exs.A.23 and A.24 with the defendants and properties which were exchanged were lesser value and that would also prove that the fourth defendant could not be in possession of property as alleged by him as per Ex.A.39 and on the other hand, the plaintiffs proved that they had means to pay the balance sale consideration through Exs.A.44 to A.46 and even on 6.8.1979, the first plaintiff was having properties worth Rs.80,000/- and Ex.A.29 Pass Book was filed to prove that as on 28.11.1981, the first plaintiff was having more than Rs.2,00,000/- cash in his account and considering these aspects, the trial court rightly decreed the suit.
34. Mr.R.Subramanian, learned counsel appearing for the second respondent also relied upon the following judgments in support of his contention:-
(i) Narinderjit Singh v. North Star Estate Promoters Limited [(2012) 5 Supreme Court Cases 712]
(ii) Coromandel Indag Products Pvt.Ltd., v. Garuda Chit and Trading Company Pvt.Ltd., and another [(2011) 8 SCC 601]
(iii) T.R.K.Saraswathy v. R.Kandasamy & others [2011-5-L.W.736]
(iv) Rameshwar Prasad (dead) by LRs. v. Basanti Lal [(2008) 5 SCC 676]
(v) Silvey and others v. Arun Varghese and another [(2008) 3 MLJ 951 (S.C.)]
(vi) Sita Ram & others v. Radhey Shyam [2007-4-L.W.889]
(vii) S.Kesari Hanuman Goud v. Anjum Jehan & Ors (Civil Appeal Nos.2885-2887 of 2005 and Civil Appeal Nos.2888 & 4459 of 2005 decided on April 10, 2013)
35. On the above submissions of both the counsels, the following points for consideration arise in these Appeals:
(i) Whether Ex.A.5 was executed by the defendants 1 and 2 in O.S.No.704 of 1981 and Ex.A.6 was executed by the defendants 1 to 3 in O.S.No.707 of 1981 as alleged by the plaintiffs?
(ii) Whether Exs.A.7 and A.8 were executed by the said defendants for extention of time and they also parted with possession of a portion of the suit property as stated in Exs.A.7 and A.8?
(iii) Whether Exs.A.9 and A.10 were executed by the aforesaid defendants seeking extention of time?
(iv) Whether the plaintiffs were ready and willing to perform their part of the contract as per Exs.A.5 and A.6?
(v) Whether Ex.A.39 equivalent to Ex.B.19 was executed by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 in favour of the fourth defendant in respect of the entire suit properties in both the suits?
(vi) Whether the agreement Ex.A.39 equivalent to Ex.B.19 was a genuine document as alleged by the appellants?
(vii) Whether the defendants 4 to 12 in O.S.No.704 of 1981 and the defendants 6 to 11 in O.S.No.707 of 1981 are bona fide purchasers for value?
36. The plaintiffs filed the above two suits on the basis of Exs.A.5 and A.6 for specific performance and therefore, the burden is on them to prove that Exs.A.5 and A.6 were executed by the defendants 1 and 2 in favour of the plaintiffs. It is contended by the plaintiffs that defendants 1 and 2 and defendants 1 to 3 in the respective suits though filed statement denying the execution of Ex.A5 and A.6 and also Exs.A.7 to A.10, they did not choose to enter into the witness box to deny the execution of Exs.A.5 to A.10. Therefore, the non-examination of defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 would definitely lead to the presumption that Exs.A.5 to A.10 were executed by those defendants in favour of the plaintiffs. Further, in Exs.A.31 to 36, answers given by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 before the criminal case would also go in favour of the plaintiffs as contended by them.
37. Insofar as Exs.A.32 to 36, in Exs.A.32 and 33, the defendants 1 and 2 in O.S.No.704 of 1981 admitted only the signature and denied the execution of agreement of sale. In Exs.A.34 to 36, the defendants 1 to 3 in O.S.No.707 of 1981 admitted the execution of Ex.A.6. In these background, we will have to see whether the plaintiffs are entitled to claim the relief of specific performance?
38. It is settled law that in a suit for specific performance, the plaintiffs must come to Court with clean hands, should not suppress any material facts, should not project a false case. He must also prove the readiness and willingness and he must prove means to pay the balance sale consideration. Though the signatures in Ex.A.5 were admitted by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 admitted the execution of agreement of sale, they have not admitted Exs.A.7 to A.10. It is the specific case of the plaintiffs that on the date of execution of Exs.A.5 and A.6, there were no sugar cane crops in the suit property and the same was also admitted by PWs.1 to 5. Further, there could not have been any sugar cane crops in the suit property at the time of execution of Exs.A.5 and A.6, as the parties agreed to complete the transaction within a period of 4 months. However, while executing Exs.A.7 and A.8, it is stated that 10 more months' time is required to harvest the sugarcane crops and for that purpose, the defendants sought for extention of time and that was agreed by the first plaintiff and the first plaintiff demanded possession of the property. When there were no crops on the date of agreement of sale, the defendants would not have planted sugarcane crops after the agreement of sale as they were bound to execute the sale deed within 4 months' period. It is admitted by PW.s.1 to 5 that at the time of execution of Exs.A.7 and A.8, there were 5 months old crops in the suit properties and only for the purpose of harvesting the sugar cane crops, 10 months time was granted. As stated supra, when the defendants could not have cultivated sugarcane crops after entering into the agreement of sale, the admission of PWs.1 to 5 that 10 months time was granted to enable the defendants to harvest the sugar cane crops appears to be doubtful. Further, it is the case of the plaintiffs that the plaintiffs agreed to grant 10 months time on condition of getting possession of some portion of the suit property and that was agreed and 30 cents of land east of the house in the suit property in O.S.No.704 of 1981 was given and 25 cents along with row houses in the suit property in O.S.No.707 of 1981 was given under Exs.A.7 and 8 respectively. Admittedly, in Exs.A.7 and A.8, except the extent, no details about the boundaries are mentioned. However, in the suit schedule, the boundaries in respect of Item No.2 property are mentioned and it is not explained how the plaintiffs were able to give the boundaries. As a matter of fact, PWs.2, 3 and 5 admitted that on the date of Exs.A.7 and A.8, the properties were not measured and Exs.A.7 and A.8 were executed at the place where the first plaintiff was residing. Therefore, it is made clear that at the time of execution of Exs.A.7 and A.8 properties were not measured but it is recited that possession of 30 cents and 25 cents of properties were given.
39. Therefore, the next question that arises for consideration is whether under Exs.A.7 and A.8, possession could have been given by the defendants 1 and 2 and the defendants 1 to 3 in both the suits as claimed by the plaintiffs. In his evidence, PW.1 would say that the defendants in O.S.No.704 of 1981 gave 25 cents along row of houses and the defendants 1 to 3 in O.S.No.707 of 1981 gave 30 cents in respect of the suit properties. PWs.2 and 3 also corroborated the said extent in their evidence. On the other hand, as per Exs.A.7 and A.8, 30 cents in O.S.No.704 of 1981 was given and 25 cents along with row of houses in respect of the suit property in O.S.No.707 of 1981. This would create a doubt whether the possession was given as alleged by the plaintiffs. Further, as rightly contended by the learned counsel for the appellants, the extent stated in Exs.A.7 and A.8 could not have been given as per Exs.A.7 and A.8 as evidenced by Exs.A.25 and A.26. Exs.A.25 and A.26 are the Adangal Extracts for the fasli year 1389 and as per Adangal 5.30 acres in Survey No.581/B2 are under cultivation against the total extent of 5.58 acres. Therefore, only 28 cents was available including the well in 14 cents but according to the plaintiffs, 30 + 25 cents equivalent to 55 cents were given in Survey No.581/B2. Therefore, Exs.A.25 and A.26 would prove that 55 cents of property could not have been given as alleged by the plaintiffs as per Exs.A.7 and A.8. Further, without measuring and identifying 30 cents and 25 cents, possession could not have been given as stated in Exs.A.7 and A.8. Further, PWs.2 to 5 admitted that endorsements were made at the house of the first plaintiff and the exact extent of the property was not identified and therefore, the plaintiffs could not have been given possession of those extent on the date of execution of Exs.A.7 and A.8. One more aspect is also to be taken into consideration, which would prove that possession could not have been given. As stated supra, against the total sale consideration of Rs.2,39,000/-, the plaintiffs have paid Rs.5,000/- to each parties under Exs.A.5 and A.6, which is lesser than 1/20th of the sale consideration. According to the plaintiffs, the defendants have cultivated sugarcane crops in the suit property at the time of execution of Exs.A.7 and A.8. In such circumstances, whether possession of the vacant land could have been given to the plaintiffs is a question to be considered.
40. According to me, when the defendants have cultivated sugar cane crops in the entire suit property, having received a paltry sum of Rs.5,000/-, they would not have parted with possession of the extent of the property as alleged by the plaintiffs. Further, without demarcating the extent, the plaintiffs could not have been given possession by the defendants as alleged by the plaintiffs. These aspects were not at all taken into consideration by the trial Court and the trial Court misdirected itself by giving a finding that Ex.A.39 agreement of sale between the fourth defendant and the defendants 1 and 2 in O.S.No.704 of 1981 and defendants 1 to 5 in O.S.No.707 of 1981 was fabricated and on that basis held that Exs.A.5 and A.6 are genuine documents. As rightly submitted by the learned counsel for the appellants, even assuming that Ex.A.39 is a fabricated document, even assuming that O.S.No.582 of 1981 was filed as collusive suit, even assuming that the fourth defendant colluded with the defendants 1 and 2 in creating the documents, that would not entitle the plaintiffs to get the relief of specific performance unless the plaintiffs prove that Exs.A.5 and A.6 were genuine and Exs.A.7 to 10 were executed by the defendants and possession was given. According to me, having regard to the discussion stated above, possession of the Item No.2 of the suit property as alleged by the plaintiffs could not have been given under Exs.A.7 and A.8.
41. My conclusion is further confirmed by Exs.A.11 and A.13. Exs.A.11 and A.13 are the two letters sent by the first plaintiff to the defendants asking them to execute the sale deed. It is admitted by PW.1 that Exs.A.11 and A.13 were drafted by the advocate and was sent by him in his name. Therefore, it cannot be contended that the first plaintiff being a layman did not know the intricacies of possession of part of the property and therefore, he did not mention in Exs.A.11 and A.13 about the possession given in respect of a portion of the suit property. Exs.A.11 was issued to the defendants 1 and 2 in O.S.No.704 of 1981 and Ex.A.13 was issued by the defendants 1 to 3 in O.S.No.707 of 1981. These two letters are dated 6.11.1981 and in those letters, there was no mention about the delivery of possession of second item of suit property in both the suits but on the other hand, the plaintiffs sought for possession of the entire extent of suit properties. Therefore, Exs.A.11 and A.13 would conclusively prove that possession could not have been given under Ex.A.7 and A.8 in respect of item 2 of the suit property.
42. The above conclusion is further confirmed by the endorsement made in Exs.A.9 and A.10. Exs.A.7 and A.8 are dated 7.11.1980 and they came into existence nearly 4 months after Exs.A.5 and A.6. In Exs.A.7 and 8, it is specifically stated that 10 months' time is given to enable the defendants to harvest the sugar cane crops. It is admitted by PWs.1 to 5 that on the date of execution of Exs.A.7 and A.8, 5 months sugar cane crop was in the suit property. It is a common knowledge that the sugarcane is a one year crop and if the crops were 5 months old on the date of execution of Exs.A.7 and A.8, it would have been ready for harvest by the end of July, 1981 and under Exs.A.7 and A.8, time was extended till 7.9.1981. Exs.A.9 and A.10 are dated 27.8.1981. It is stated in Exs.A.9 and A.10 that 3 months time is given for harvesting the sugar cane and possession would be given thereafter. In Exs.A.9 and A.10, there was no reference to possession of item 2 of the suit properties and it is stated that the sale deed and possession of the property would be given 3 months later. This would also falsify the endorsement made in Exs.A.7 and A.8. In other words, in Exs.A.9 and A.10, it is not stated that the remaining extent of land which were used for cultivation of sugarcane crops that would be delivered after 3 months. The endorsement that possession would be given in 3 months after harvesting would only prove that possession in respect of a portion of the suit properties was not given as per Exs.A.7 and A.8. It would also falsify the case of the plaintiffs that Exs.A.7 to A.10 executed at the instance of the defendants on the ground that sugar cane crops cultivated in the suit properties were to be harvested and therefore, they sought for time. As stated supra, sugar cane crops could not have been cultivated by the defendants after entering into the agreement of sale and the plaintiffs would not have also allowed the defendants to cultivate the sugar cane crops after entering into the agreement of sale, and the extention of 13 months from November 1980 for the execution of the sale deed at the instance of the defendants would also probablise that the plaintiffs did not come to Court with clean hands regarding the delivery of possession of portion of the suit property and the reasons for extention of time on the ground of presence of sugarcane crops cannot also be accepted. These aspects were not at all considered by the trial court while considering Exs.A.5 to A.10.
43. In a suit for specific performance, the conduct of the plaintiffs must be blemishless, the plaintiffs must have come to the Court without suppressing any material facts and their claim must be bona fide. In this case, the plaintiffs have not proved that possession was given but they contended that that possession was given under Exs.A.7 and A.8, which was proved to be false for the reasons stated above. Therefore, I come to the conclusion that the plaintiffs have come forward with the false case and therefore they are not entitled to the discretionary relief of specific performance. Even assuming that Exs.A.5 and A.6 were true and were executed by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981, having held that the plaintiffs came forward with a false case regarding possession, there is no need to discuss about the means of the plaintiffs and even assuming that the plaintiffs were having the means that would not entitle the plaintiffs to claim the relief of specific performance. Having held that Exs.A.7 to A.10 could not have been executed by the defendants 1 and 2 and the defendants 1 to 3 in both the suits, I hold that the plaintiffs also failed to prove that they were ready and willing to perform their part of the contract and according to me, it appears strange that time was sought for by the defendants on the ground that they cultivated sugar cane after entering into the agreement of sale when major portion of the consideration was not paid. Therefore, I answer points for consideration 1 to 3 holding that the plaintiffs failed to prove that possession was given under Exs.A.7 and A.8 and also the execution of Exs.A.7 to A.10 for the reasons stated above and the plaintiffs are guilty of suppression of facts and have come with false case. Therefore, even though Exs.A.5 and A.6 are true and accepted by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 the plaintiffs are not entitled to the discretionary relief of specific performance as having come out with the false case.
44. In the judgment reported in 1996 (5) SCC 589 supra, it is held that when the plaintiff based his case on certain false and incorrect facts, he is not entitled to relief for specific performance.
45. In the judgment reported in (2006) 2 SCC 496 supra, it is held that basic principle in a suit for specific performance, the person seeking discretionary relief of specific performance must manifest that his conduct has been blemishless throughout entitling him to the specific relief of performance. The provision imposes a personal bar and the Court has to grant relief on the basis of the conduct of the person seeking relief. The same principle has been reported in the judgments reported in (2010) 10 SCC 512 supra and 2007-4-LW 889 supra. Having regard to the false case projected by the plaintiffs regarding possession and also having regard to the fact that the possession was not with the plaintiffs as alleged by the plaintiffs as per Exs.A.7 and A.8, the plaintiffs are not entitled to the relief of specific performance. Therefore, the points for consideration (i) to (iii) are answered in favour of the appellants and against the plaintiffs.
46. Having held that the plaintiffs are not entitled to the relief of specific performance while answering the points for consideration (i) to (iii), there is no necessity to answer the other points for consideration. Nevertheless, for the sake of completion, and as these aspects were also dealt with by the trial Court and the arguments were advanced on these aspects, I am inclined to deal with the other points for consideration.
47. Even assuming that Exs.A.5 and A.6 are valid documents and the plaintiffs are entitled to claim the relief of specific performance, we will have to see whether the plaintiffs have proved their readiness and willingness to perform their part of the contract.
48. I have already held while answering point No.(i) that Exs.A.5 and A.6 were proved to have been executed by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981. In a suit for specific performance, even though the agreement of sale is admitted or proved, there is no necessity to grant the relief of specific performance unless the plaintiff proves his readiness and willingness to perform the contract from the date of agreement of sale till the date of filing of the suit. I have already held that Exs.A.7 and A.8 could not have been executed by the defendants and possession could not have been granted to the plaintiffs and also held that the case of the plaintiffs that extension of time was sought for by the defendants on the ground of presence of sugar cane crop and extention was also given and possession of Item 2 of property was given as per Exs.A.7 and A.8 was not true. Therefore, when Exs.A.7 to A.10 cannot be believed, the plaintiffs are not entitled to the relief of specific performance as they failed to prove the readiness and willingness till the date of filing of the suit. Even assuming that time was extended at the instance of the defendants as per Exs.A.7 and A.8 the further question to be considered is whether the plaintiffs were ready and willing to perform their part of the contract.
49. Though in the plaint, it has been averred that the plaintiffs are ready and willing to perform their part of the contract, the evidence is otherwise. PW.1 has also stated in the evidence that he was having enough means to pay the balance sale consideration and to prove the same, he produced Ex.A.29. He also deposed that he is owning 7 acres of land and his wife is owning 3 acres of land and in those 10 acres of land, he raised coconut trees and he was getting Rs.25,000/- per month. Ex.A.1 is the sale deed in respect of 3 acres in the name of his wife but no document was filed to prove that he owns 7 acres of land and coconut trees are grown in those lands. If the plaintiffs were earning Rs.25,000/- per month from coconut thopu as alleged by them, they would have paid the entire sale consideration even while entering into the agreement of sale and there was no necessity for them to pay a paltry sum of Rs.5,000/- at the time of execution of Exs.A.5 and A.6. Further, a perusal of Ex.A.29 would also make it clear that the plaintiffs were not having the means to pay the balance sale consideration at the time of execution of Exs.A.5 and A.6 or later. It is seen from the entry of Pass Book Ex.A.29 that the said account was opened only on 23.11.1981 just before filing of the suit and a sum of Rs.2,40,000/- was deposited on 25.11.1981 to make it appear that the plaintiffs are having the means to pay balance sale consideration of the suit property and subsequently, it was withdrawn. Though in the judgment reported in 2011-5-LW 736 supra, it is held that, it is not necessary for a vendor to keep the balance sale consideration either in cash or in bank account but it is sufficient if it is proved that the vendor is capable of raising balance sale consideration when the time for performance of the agreement of sale arrives. In this case, having regard to the entries in Ex.A.29 that the amount was deposited one day prior to the filing of the suit and subsequently, the amount was withdrawn, and earlier to that, there was no proof available to show that the plaintiffs were having means to pay balance sale consideration, it has to be decided that the plaintiffs failed to prove the means to pay the sale consideration.
50. In (2011) 8 SCC 601 supra, the Hon'ble Supreme Court held that actual tendering or depositing of money in Court is not essential except when so directed by the Court. But, it is incumbent on the part of the party who wants to enforce the specific performance contract to aver and prove that he has performed or has always been ready and willing to perform essential terms of the contract.
51. In the judgment reported in (2005) 6 SCC 243, Umabai v. Nilkanth Dhondiba Chavan, it is held as follows:
"30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records."
52. In the judgment reported in (2009) 14 SCC 663 supra, it is held as follows:-
"25. For the purpose of obtaining a decree for specific performance of contract, the court must arrive at a conclusion that the plaintiff not only pleaded but also established his readiness and willingness to perform his part of the contract throughout. Exercising the discretionary jurisdiction one way or the other having regard to Section 20(2)(b) would depend thereupon arriving at a finding of such fact. Balancing of interest would be necessary provided a suit is to be decreed and not when the suit is to be dismissed."
53. In (2011) 1 SCC 429 supra, the Hon'ble Supreme Court relying upon the passage from the judgments reported in (1995) 5 SCC 115 (N.P.Tirugnanam v. Dr.R.Jagan Mohan Ra, and (2004) 6 SCC 649 (P.D'Souza v. Shondrilo Naidu) interpreted the words "ready" and "willing" as follows:-
"22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao [(1995) 5 SCC 115], this Court held:
"5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that the had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstances is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.
24. In P.D'Souza v. Shondilo Naidu [(2004) 6 SCC 649 ], this Court observed:-
"19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf ...
* * *
21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement of sale."
54. It is held in the judgment reported in (2000) 2 SCC 428 supra that even a subsequent purchaser is entitled to raise a plea that the plaintiff was not ready and willing to perform his part of the contract. Therefore, even though the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 did not contest the case, the first appellant being the fourth defendant in O.S.No.704 of 1981 and sixth defendant in O.S.No.707 of 1981 is entitled to take the plea that the plaintiffs was not ready and willing to perform his part of the contract. As stated supra, Ponnuswamy Nadar was the competent person to speak about the means and except Ex.A.29 Pass Book, he has not produced his means to purchase the suit property. Therefore, the arguments of the learned counsel for the appellants that the plaintiffs failed to prove their readiness on their part and therefore, they are not entitled to the relief of specific performance has to be accepted. I, therefore, held that the plaintiffs failed to prove that they were ready and had the means to perform their part of the contract and Point No.(iv) is also answered in favour of the appellants.
55. Having held that the plaintiffs are not entitled to the relief of specific performance while answering the points for consideration (i) to (iv), there is no necessity to answer the other points for consideration. Nevertheless, as stated supra, for the sake of completion and having regard to the fact that those aspects were dealt with by the trial Court and the arguments were advanced by both the counsels, I am dealing with those points also.
56. The trial Court disbelieved the agreement of sale Ex.A.39 equivalent to Ex.B.19 entered into between the first appellant/fourth defendant in O.S.No.704 of 1981 and sixth defendant in O.S.No.707 of 1981 on the ground that in the agreement of sale dated 27.3.1979 Ex.A.39 equivalent to Ex.B.19, the 4th party is named and in Exs.A.5 and A.6, the 4th party is not named and stated to be unnamed minor and therefore, Ex.A.39 equivalent to Ex.B.19 dated 27.3.1979 cannot be a true document and it must have been fabricated. The arguments can be applied to Exs.A.5 and A.6 also. It can also be argued that even though the minor was named in the year 1979, failure to mention the name of the minor in Exs.A.5 and A.6 would prove that those Exs.A.5 and A.6 are forged one.
57. According to me, mentioning or non-mentioning of the name of the minor in Ex.A.39 equivalent to Ex.B.19 or Exs.A.5 and A.6 will not lead to the presumption or conclusion that those documents are forged. On the other hand, we will have to see the totality of the circumstances to arrive at the conclusion whether Ex.A.39 equivalent to Ex.B.19 is a genuine document. Admittedly, the suit was filed by the fourth defendant in O.S.No.582 of 1981 to enforce the agreement of sale dated 27.3.1979. It is also admitted that the suit was allowed to be dismissed as settled out of Court and thereafter, exchange deed was executed between the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 in respect of a certain portion of property in favour of the defendants 3 and 5 in O.S.No.704 of 1981 and 7th defendant in O.S.No.707 of 1981 as evidenced by Exs.A.22, 23 and 24. In those documents also, reference was made to the agreement of sale on 27.3.1979 and the suit filed by Raju the first plaintiff in O.S.No.582 of 1981. These factors would only probablise that Ex.A.39 equivalent to Ex.B.19 agreement of sale cannot be a fabricated one or created after the execution of Exs.A.5 and A.6 to defeat the rights of the plaintiffs. Further, the trial Court disbelieved Ex.A.39 equivalent to Ex.B.19 on the ground that no permission was obtained by the first appellant/D4 from TNEB for purchasing the property by entering into the agreement of sale and he has not disclosed his means to the TNEB as evidenced by Exs.X.1 and X.2. Even assuming that permission was not obtained from TNEB, and the fourth defendant Raju, did not disclose the source or his means to his employer that would not lead to the conclusion that the agreement of Ex.A.39 equivalent to Ex.B.19 is a forged one. Ex.B.21 is the paper publication given by the first appellant and the appellants also filed the sale deeds in their favour. Therefore, having regard to the filing of the suit in O.S.No.582 of 1981 and by making reference in the exchange deeds and in the sale deeds about the agreement of sale Ex.A.39 equivalent to Ex.B.19 and the suit in O.S.No.582 of 1981, would prove that Ex.A.39 equivalent to Ex.B.19 agreement of sale dated 27.3.1979 was executed by the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 and the appellants proved the agreement of sale. I answer Point No.(v) in favour of the appellants.
58. The plaintiffs did not prove that the defendants 4 to 12 in O.S.No.704 of 1981 and the defendants 6 to 11 in O.S.No.707 of 1981 were aware of the agreement of sale Exs.A.5 and A.6 and thereafter, they bought the properties. Once it is held that Ex.A.39 equivalent to Ex.B19 which is earlier in point of time is a genuine document, the plaintiffs cannot claim any right under Ex.A.5 and A.6 even assuming that these documents are true. Further, the non-examination of the vendors, namely, the defendants 1 and 2 in O.S.No.704 of 1981 and the defendants 1 to 3 in O.S.No.707 of 1981 cannot be put against the purchasers once the purchasers proved that Ex.A.39 equivalent to Ex.B.19 was a genuine document. When the subsequent purchasers are bona fide purchasers for value without notice of the earlier agreement of sale, they are entitled to hold the property and the plaintiffs cannot claim any relief against them and the suit is liable to be dismissed. In the absence of any evidence that the subsequent purchasers were aware of Exs.A.5 and A.6, I hold that the purchasers, namely, the defendants 4 to 12 in O.S.No.704 of 1981 and the defendants 6 to 11 in O.S.No.707 of 1981 are bona fide purchasers for value without notice of Ex.A.5 and A.6 and therefore, they are entitled to keep the properties and on that ground also, the plaintiffs are not entitled to the relief of specific performance.
59. One more aspect has to be taken into consideration. As stated supra, against the total consideration of 2.39 lakhs, the plaintiffs paid only Rs.10,000/-. The suit was filed in the year 1981 and 30 years have lapsed and at this point of time, having regard to the advance paid by the plaintiffs, it will not be in the interest of justice to direct the defendants to execute the sale deed in favour of the plaintiffs as per Exs.A.5 and A.6. Though escalation of price cannot be a ground to deny the relief of specific performance, considering the fact that a meagre sum of Rs.10,000/- was paid against the total consideration of Rs.2.39 lakhs and the interest of subsequent purchasers have come into effect and the subsequent purchasers are bona fide purchasers for value, it is not in the interest of justice to decree the suit for specific performance.
60. In this connection, it is pertinent to refer to the following judgments:-
(i) In Sardar Singh v. Krishna Devi (1994) 4 SCC 18), the Hon'ble Supreme Court held that Section 20(1) declaring the jurisdiction of courts to decree specific performance being discretionary, the court is not bound to grant such relief merely because it is lawful to do so and that the discretion of the court is to be exercised guided by sound and reasonable judicial principles, not arbitrarily. It was also cautioned that the court has to also take into account the circumstances of each case keeping in view the fact that the circumstances specified in Section 20 are illustrative and not exhaustive and that the plaintiff cannot succeed in obtaining an order of specific performance unless he is able to show sufficiently and clearly the existence of a contract that is valid and enforceable at law at the time when the order is sought.
(ii) In N.Narendra v. Riviera Apartments (P) Ltd., [(1999) 5 SCC 77] the Hon'ble Supreme Court reiterated that severe hardship may be a ground for refusing specific performance, even though it results from circumstances, which arise after the conclusion of this contract, which affect the person of the defendant and for which the plaintiff is in no way responsible. Adverting to inflationary increase in the value of properties and the relevance of the same in denying or granting the relief at paragraph 35 of the Report, it was observed as hereunder :
"Added to all this is the factum of astronomical rise in the value of the land which none of the parties would have forecontemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. ... Upon an evaluation of the totality of the circumstances, we are of the opinion .... The contract though valid at the time when it was entered, is engrossed in such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents."
61. Unfortunately, these aspects were not considered by the trial Court and the trial Court misdirected itself by finding fault with the defendants' case of agreement of sale dated 27.3.1979 and found that Ex.A.39 equivalent to Ex.B.19 was not proved and therefore, decreed the suit holding that the plaintiffs proved their case and therefore, the trial Court is erroneous and the trial Court ought to have found whether the plaintiffs proved their case and whether the plaintiffs are entitled to the relief of specific performance.
62. In the result, the judgment and decree of the trial Court are set aside and the Appeals are allowed. No order as to costs.
28.03.2014 Index : yes Internet: yes asvm To The Subordinate Judge, Coimbatore.
R.S.RAMANATHAN, J (asvm) Judgment in A.S.Nos.646 and 647 of 1987 28.03.2014