Kerala High Court
Balan vs Krishnan on 19 September, 2002
Author: P.R. Raman
Bench: P.R. Raman
JUDGMENT K.A. Mohamed Shafi, J.
1. The defendant in O.S. 1368/94 on the file of Subordinate Judge's Court, Thrissur is the appellant. The suit was filed for specific performance of the agreement entered into between the plaintiff and the defendant. Though the defendant admitted the agreement, has contended that the plaintiff has repudiated the contract and accordingly the advance amount received by him is paid to the plaintiff and therefore, the plaintiff is hot entitled to any relief in the suit. The lower court after trial found that the plaintiff is entitled to specific performance of the contract and granted a decree in his favour directing the defendant to execute the registered assignment deed as per the agreement on the plaintiff depositing the balance consideration in court within a month from the date of the judgment. Hence the above appeal is preferred by the defendant before this Court.
2. The defendant - appellant died pending appeal and his legal representatives are impleaded as additional appellants 2 to 8 as per order in CMP No. 2079/2000 dated 5.6.2000.
3. The deceased 1st appellant and the respondent are brothers. It is the admitted case that they entered into Ext. A1 agreement dated 20.7.1994 whereby the deceased 1st appellant agreed to sell 47 cents of land belonging to him exclusively to the respondent for a consideration of Rs. 3500/- per cent, recei ved Rs. 50,000/- towards consideration and agreed to execute registered assignment deed in respect of the property on or before 30.10.1994.
4. The respondent has contended that the deceased 1st appellant did not comply with the stipulations in the agreement even though he has been ready and willing to perform his part of the contract.
5. The 1st appellant has contended that after executing Ext. A1 agreement there was a Subsequent oral agreement between him and the respondent that as the property agreed to be sold was in the possession of Kumaran, the brother of the 1st appellant and the respondent, the respondent agreed to obtain possession of the property from him and since Kumaran refused to hand over possession of the property to the respondent, he repudiated the agreement and demanded the advance amount paid by him. Accordingly the 1st appellant sent a demand draft for Rs. 50,000/- to the respondent and therefore the agreement is discharged and as such the above suit is not sustainable.
6. It is the common case that the deceased 1st appellant was permanently settled in Madras and his legal representatives, additional appellants 2 to 8 are also settled down in Madras. As already noted there is no dispute that the property agreed to be sold belonged to the deceased 1st appellant exclusively. In Ext. Al there is no recital to the effect that the property is in the possession of Kumaran or anybody else and the stipulation therein is to give possession of the property to the respondent on execution of the sale deed. Since the deceased 1st appellant has set up an oral agreement as against the recitals made in Ext. A1 written agreement, the burden is heavy upon him to prove the oral agreement.
7. In order to substantiate the contention that Kumaran was in possession of the property the deceased 1st appellant has examined himself as DW1 and two other witnesses as DWs. 2 and 3 and produced Ext. B4 series. Ext. B4 series are receipts allegedly obtained by Kumaran for payment of land revenue in respect of the property agreed to be sold to the respondent and other properties exclusively belonged to Kumaran. Ext. B4 series show that land revenue is paid by Kumaran and the deceased 1st appellant in respect of three items of properties. Payment of land revenue by the brothers jointly for the properties belonging to both of them jointly or separately will not confer right in or possession of the properties to any one of them exclusively. Therefore, the mere fact that the land revenue was being paid by Kumaran and deceased 1st appellant jointly for the plaint schedule property and other properties belonged to Kumaran is of no help to the 1st appellant to establish that Kumaran was in possession of the plaint schedule property as of right. The evidence of DW2 that he had been working in the plaint schedule property as directed by Kumaran or Kumaran was collecting income from the property will not in any way advance the case of the 1st appellant or militate against the case of the respondent since admittedly the 1st appellant was permanently residing in Madras and there is nothing wrong in the brother Kumaran doing the agricultural operations or managing the property including collection of the income on behalf of the 1st appellant.
8. The 1st appellant has contended that after the execution of Ext. Al agreement as Kumaran refused to hand over possession of the property to the respondent, there was mediation by one deceased Korukutty and Kumaran did not agree to give possession of the property to the respondent. In order to prove that contention the 1st appellant has examined DW3. The testimony of DW3 does not show that there was a mediation by deceased Korukutty in the matter since according to DW3 his knowledge in that behalf is only hearsay being told by the 1st appellant. His evidence to the effect that as requested by the respondent he asked Kumaran to surrender possession of the property and Kumaran did not yield does not inspire the confidence of the court.
9. It is pertinent to note that deceased Kumaran was a bachelor and he has conveyed his individual properties to the deceased 1st appellant. There is not even the slightest suggestion that Kumaran was antagonistic towards the deceased 1st appellant. On the other hand, the facts and circumstances of this case and the evidence on record would go to show that deceased Kumaran was supporting the deceased 1st appellant. Ext. A2 registered notice calling upon the deceased 1st appellant to execute the assignment deed as per Ext. Al agreement is sent on behalf of the respondent on 17.10.1994 and the deceased 1st appellant sent Ext. A3 reply notice dated 24.10.1994. It is pertinent to note that Ext. B2 registered notice dated 22.10.1994 is alleged to have sent by Kumaran addressing to deceased 1st appellant and the respondent claiming tenancy right in the property. The respondent has contended that he has not received any such notice sent on behalf of Kumaran. There is nothing on record to show that any such notice is sent to the respondent as stated in Ext. B2. Therefore, it appears that in between the receipt of Ext. A2 notice sent by the respondent to the deceased 1st appellant and Ext. A3 reply notice sent on behalf of the deceased 1st appellant la the respondent, Ext. B2 came into existence allegedly claiming tenancy right by Kumaran in the property. It is also to be noted that such a claim of tenancy right in the property was never pursued by deceased Kumaran and the fact that the deceased 1st appellant has been in possession of the property subsequent to the death of Kumaran is also not disputed. Therefore, Ext. B2 could have been created to resist the claim of the respondent as per Ext. A1 agreement.
10. The counsel for the appellants submitted that the deceased 1st appellant had sent demand draft for Rs. 50,000/- to the respondent being the advance paid by him before the institution of the suit. But he did not make mention of the receipt of the demand draft in the plaint and he made mention of the receipt of the demand draft only in the replication filed by him long after the written statement is filed by the deceased 1st appellant. Therefore, according to the counsel for the appellants these facts establish that the respondent has not come to court with clean hands in order to get the equitable relief for specific performance of Ext. A1 agreement.
11. The counsel for the respondent submitted that the respondent has caused to send Ext. A2 notice dated 17.10.94 and it is thereafter the respondent received the demand draft on 19.10.1994. Therefore, there was no opportunity to make mention of the receipt of the demand draft in Ext. A2 notice. He further submitted that in the plaint the respondent has denied all the contentions raised by the deceased 1st appellant though it is not specifically stated about the receipt of the demand draft. He also submitted that the demand draft is not encashed by the respondent and he has produced the original of the same in court and marked as Ext. A4. Therefore, he submitted that the failure of the respondent to mention about the receipt of the demand draft specifically in the plaint is of no significance and the respondent has mentioned that aspect in this replication.
12. Copy of the letter alleged to have sent by the deceased 1st appellant to the respondent along with Ext. A4 is not produced by him. Considering the facts and Circumstances of the case and the evidence on record we find that the failure of the respondent to make mention of the receipt of the demand draft in the plaint is not material in this case.
13. The counsel for the appellants submitted that the value of the property is worth much more than what is mentioned in Ext. A1 and it is enhanced considerably after the execution of Ext. A1 agreement. Therefore, if at all the lower court ought to have granted some compensation to the respondent rather than directing execution of the assignment deed in favour of the respondent, even if the lower court found that the case put forward by the deceased 1st appellant is not acceptable.
14. It has to be noted that in Ext. A1 there is specific recital that the property is agreed to be sold at Rs. 3500/- per cent The appellants have no case that the consideration recited in Ext. A1 is low or inadequate. It is clear from the evidence on record that the deceased 1st appellant has raised unsustainable contentions to resist the performance of Ext. A1 agreement.
15. The appellants are permanently residing in Madras and therefore the counsel for the respondent submitted that there is no question of the appellants retaining possession of the property and their intention is only to sell the property to third parties avoiding Ext. A1 agreement. Therefore he has submitted that it is only in the interest of justice that the appellants are directed to assign the property in favour of the respondent rather than awarding him some compensation for breach of the agreement. He also submitted that balance consideration is already deposited by the respondent in court within the time stipulated by the lower court.
16. After considering the entire facts and circumstances of the case and the evidence on record we are of the view that the interests of justice in this case can be better served by directing the appellants to execute the assignment deed in favour of the respondent rather than awarding some compensation for breach of the agreement. Therefore, we find that the lower court is justified in decreeing the suit for specific performance in favour of the respondent. Hence we find absolutely no ground to interfere with the decree and judgment passed by the lower court.
Therefore, the appeal is dismissed confirming the decree and judgment passed by the lower court. Under the circumstances we direct the parties to bear their respective costs in the appeal.