Madras High Court
Kannammal vs Ranganayaki on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.754 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
S.A.No.754 of 2010
Kannammal .. Appellant
Versus
1. Ranganayaki
2. The Executive Engineer,
Tamil Nadu Housing Board,
Kowli Ground Road,
Coimbatore.
3. Baby alias Vijayalakshmi
4. Guna alias Gunapathy
5. Hari alias Sri Hari
6. Mohan Raj .. Respondents
Second Appeal filed under Section 100 of C.P.C against decree and
judgment dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned
Principal Sub Judge, Coimbatore confirming the decree and judgment dated
01.04.2004 in O.S.No.515 of 1997 on the file of the learned Principal District
Munsif, Coimbatore.
For Appellant : Mr. N. Manokaran
For Respondent 1 : Mrs. AL. Gandhimathi,
Senior Counsel
for M/s. CT. Murugappan
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S.A.No.754 of 2010
For Respondent 2 : Mr. C. Kalaiselvan
Standing Counsel
: R3 to R6 – Notice served. No appearance.
JUDGMENT
This Second Appeal has been filed against the decree and judgment dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned Principal Sub Judge, Coimbatore confirming the decree and judgment dated 01.04.2004 in O.S.No.515 of 1997 on the file of the learned Principal District Munsif, Coimbatore.
2. Brief facts which are relevant for consideration in this Second Appeal are as follows:
2.1 The Defendant-1 is an illiterate woman. The suit property belongs to the Defendant-1 which is an extent of 5 cents 187 sq.ft of vacant house site in Coimbatore City, Sowripalayam.
2.2 Defendant-1 was a widow. She had applied for loan with the Tamil Nadu Housing Board. She had handed over possession of the property to the Tamil Nadu Housing Board. The Tamil Nadu Housing Board had put up 2/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 construction in the property belonging to the Defendant-1 and for the cost of construction they had imposed equal monthly installment of Rs.83/- from the 1st Defendant for 20 years. The Plaintiff herein was inducted as a permissive occupier by Defendant-1, as the Plaintiff was an acquaintance of Defendant-1.
The possession was handed over to the Plaintiff only as a permissive occupier. The Plaintiff paid Rs.83/- to the Tamil Nadu Housing Board towards the amount that was imposed by Tamil Nadu Housing Board on Defendant-1.
2.3. It is the claim of the Plaintiff that she had entered into sale agreement on 01.03.1980. The suit property was purchased by the Defendant- 1 as per sale deed dated 10.04.1974 which was marked during trial as Ex.X-2. The Plaintiff had cleverly obtained a deed dated 01.03.1980 from the Defendant-1 as though she undertook to pay the amount on behalf of the Plaintiff. Believing the representation of the Plaintiff, the Defendant-1 had affixed her thumb impression. As per the contents of the sale agreement dated 01.03.1980, Plaintiff claims that she had paid Rs.83/- per month to the Tamil Nadu Housing Board and she had paid Rs.8,000/- towards the construction cost and balance Rs.8,000/- she paid regularly. Advance amount of Rs.8,000/- was paid. Balance amount was to be paid by the Plaintiff to Tamil Nadu Housing Board. According to the Plaintiff version, she had paid over and 3/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 above Rs.16,000/- and the remaining due to Tamil Nadu Housing Board is only Rs.14,000/- whereas only Rs.8,000/- was payable to Tamil Nadu Housing Board. But, instead of Rs.8,000/-, the Plaintiff had paid Rs.14,000/-. Plaintiff issued pre suit notice dated 17.08.1996 under Ex.A-9. This was after 16 years, the suit for specific performance was filed. This is the gist of the Plaintiff's case.
2.4 The suit was resisted by the Defendant-1 by filing a written statement wherein she denied the sale agreement and she claimed that her illiteracy was exploited by the Plaintiff. Defendant-1 had not signed any document. She did not have intention to sell the property. The claim of the Plaintiff that she had paid over and above the sale consideration was not proved during the trial. Prior to the Plaintiff issuing notice on 17.08.1996 under Ex.A-9, the Defendant-1 had issued legal notice on the Plaintiff on 30.05.1995. Much before the pre suit notice by Plaintiff under Ex.A-9, directing the Plaintiff to surrender possession taken by the Defendant-1. Also the Defendant-1 had filed suit in O.S.No.1617 of 1995 against this Plaintiff seeking declaration of title and for delivery of possession. The suit was dismissed for non prosecution. Lastly the Plaintiff had taken a plea of adverse possession which is against settled principles of law. The trial Judge had 4/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 framed only three issues as in the suit for specific performance as to whether the Defendant-1 filed suit suppressed by the Plaintiff.
3. The learned Counsel for the Appellant invited the attention of this Court to the issues framed by the learned trial Judge. There is no issue raised regarding limitation. There is no issue raised regarding the Plaintiffs' readiness and willingness to perform his part of the contract. The suit filed by the Plaintiff was filed after 16 ½ years after the execution of the sale agreement. The trial Court decreed the suit on three grounds. (1) Defendant-1 admits her thumb impression under Ex.A-1 during her evidence. (2) the suit is not barred by limitation. The Plaintiff claims that she had claimed Tamil Nadu Housing Board but there is nothing on record to prove such claim (3) The suit in O.S.No.1617 of 1995 was allowed to be dismissed for non prosecution. These are the three grounds based on which the learned trial Judge had granted decree to the Plaintiff. The learned Appellate Judge dismissed the Appeal. Also the learned Sub Judge as Appellate Judge had given bona fide that the sale agreement is registered. The first Appellate Court had also not raised the question of willingness for consideration in point for determination. The plaint filed by the Plaintiff is silent about the readiness and willingness. 5/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010
4. The Tamil Nadu Housing Board filed I.A.No.672 of 2009 in A.S before the Appellate Court stating that no amount was paid by the Plaintiff as claimed in the plaint and also stating that Rs.6,800/- is due by the Plaintiff. Therefore, readiness and willingness was not in the pleadings. Therefore, no issue was raised. From the date of agreement till the date of filing of the suit, the Plaintiff was silent about the readiness and willingness which is against the settled proposition of law as laid by the Honourable Supreme Court in AIR 2022 SCC 1275. In a suit for specific performance, the Plaintiff has to prove the claim that the Plaintiff was ready and willing to perform his part of the contract. The claim that the Plaintiff paid Rs.8,000/- to the Tamil Nadu Housing Board is incorrect. Still there is an outstanding of Rs.6,800/- which is the pending payment to the Tamil Nadu Housing Board. As per the reported decision cited above, the Plaintiff shall plead and prove that the Plaintiff is ready and willing to perform his part of the contract.
5. The Appellant/Defendant-1 had filed written statement stating that she had purchased the suit property from TNHB under a sale deed dated 10.04.1974 (Doc.No.1400/1974) as a vacant site and after construction of a house by the Tamil Nadu Housing Board/Defendant-2, the possession was handed over to Defendant-1 subject to the condition to pay Rs.83/- per month 6/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 for 20 years. Defendant-1 is a poor illiterate old lady. She had orally permitted the Plaintiff to be in possession. While so, the Plaintiff took advantage of the illiteracy of Defendant-1 and managed to get her signature in some stamp papers during February, 1980. Defendant-1 never entered into any sale agreement with the Plaintiff agreeing to sell the suit property.
6. The suit is for specific performance of an agreement. It is for the Plaintiff to prove her readiness and willingness to perform her obligations under the agreement. Section 16 of the Specific Relief Act bars the relief of specific performance in favour of a person, who fails to aver and prove her readiness and willingness to perform her part of contract. Absolutely there is no averment to prove readiness and willingness as per the mandate of Form 47 of Appendix A of Order 6 Rule 3 CPC, which reads as under:
“The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice”
7. In support of his contention, the learned Counsel for the Appellant relied on the reported decision in the case of Padmakumari and Others v.
Dasayyan and Others reported in (2015) 8 Supreme Court cases 695, particularly paragraph 11, 21 and 22 which are held as follows: 7/55
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 “11. Another ground urged by learned counsel for defendant Nos. 12 to 15 is that the pleadings on behalf of the plaintiff must be strictly in conformity with Order 6 Rule 3 of the Code of Civil Procedure ("CPC" for short) which provides Form of pleadings and placed strong reliance upon Clause 3 of Form No. 47 in Appendix 'A' which reads thus:
"The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice".
21. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix 'A', extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus:
"6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992."
22. Upon a careful reading of the above said paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside.”
8. Suit sale agreement is dated 01.03.1980. Suit was filed on 06.03.1997 ie., after 17 years. Limitation for filing the suit is 3 years as per Article 54 of the Limitation Act, 1963. Even in the absence of any time limit fixed in the agreement, the plaintiff has to file a suit within a reasonable time. Whereas the Plaintiff has filed the above suit after an unreasonable delay of 17 8/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 years. Thus, the Plaintiff is liable to be non-suited on the sole ground of delay and latches.
9. In support of this contention, the learned Counsel for the Appellant relied on the reported decision in the case of Veerayee Ammal vs. Seeni Ammal reported in (2002) 1 Supreme Court Cases 134 wherein it has been observed as follows:
“12. In K.S. Vidyanadam & Ors. v. Vairavan this Court held:
"Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."
13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to ideosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit. In Law Lexicon it is defined to mean "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstance will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space thant 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
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10. Proof of readiness and willingness is of paramount consideration in a suit for specific performance. In fact, both the Courts below have not even framed an issue as to the readiness and willingness. No suit for specific performance could be decided without framing an issue on readiness and willingness. In view of the discretion under Section 20 of the Specific Relief Act, a suit for specific performance cannot be decreed merely because it is lawful to do so. A person seeking equitable relief must show his readiness and willingness from the inception till the agreement culminated into a sale deed. Readiness and willingness is a continuous process that must be present throughout the period of agreement. In the present case, there is no iota of evidence to prove 'willingness' which is a mental attitude to perform the part of her obligation. When both the elements of readiness and willingness are absent, the suit must fail.
11. In support of this contention, the learned Counsel for the Appellant relied on the reported decision in the case of U.N.Krishnamurthy vs. A.M.Krishnamurthy reported in (2023) 11 Supreme Court Cases 775, wherein the Hon'ble Supreme Court has observed particularly in paragraphs 20, 24 to 30 and 45 to 47, which are as follows:
“20. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to 10/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.
24.To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
25.In Man Kaur v. Hartar Singh Sangha1, this Court held that:
“40. …..A person who fails to aver and prove that he has 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 the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the 11/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not “ready and willing” to perform his obligations.”
26.In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd. And Anr.2 cited by Mr. Venugopal, this Court speaking 1 (2010) 10 SCC 512 2 AIR 1968 SC 1355 through Ramaswamy J. held that “it is well-
settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract…..” and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon3.
27. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra), in the absence of an averment on the part of the Plaintiff in the plaint, that he was ready and willing to perform his part of the contract, it was held that the Plaintiff had no cause of action so far as the relief for Specific Performance was concerned. In this case, of course, there is an averment in the plaint that the Respondent Plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the Respondent Plaintiff had proved his readiness and willingness to perform his obligations under the contract.
28. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. 4, this Court reiterated that Section 16(c) of the Specific Relief Act, 1963 envisages that the Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him 3 55 IA 300, at pg. 372:AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition precedent for grant of the relief of Specific Performance.
29. This Court, in effect, held that for determining whether the Plaintiff was ready and willing to perform his part of the agreement it is necessary for the Court to consider the conduct of the Plaintiff prior and subsequent to filing the suit for specific performance. The relevant part of the judgment is extracted hereinbelow:– “5. …Section 16(c) of the Act 12/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 envisages that plaintiff must plead and prove that he 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 circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief…”
30. In Umabai v. Nilkanth Dhondiba Chavan 5, this Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of 5 (2005) 6 SCC 243 the contract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court:-
“So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16( c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”
45. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.
46. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness.13/55
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: -
“45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act…”
47. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.
12. In the case of Shenbagam and Others v. K.K.Rathinavel reported in AIR 2022 SC 1275, particularly to paragraphs 14 to 18, 28, 29, 37 and 41, which are held as follows:
14. Section 16 of the Specific Relief Act provides certain bars to the relief of specific performance. These include, inter alia, a person who fails to aver and prove that he has 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 terms the performance of which has been prevented and waived by the defendant. In JP Builders v. A Ramadas Rao (2011) 1 SCC 429, a two-judge Bench of this Court observed that Section 16(c) mandates “readiness and willingness” of the plaintiff and is a condition precedent to obtain the relief of specific performance.
The Court held:
14/55
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 “25. Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff. […]
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.”
15.The Court further observed that “readiness” refers to the financial capacity and “willingness” refers to the conduct of the plaintiff wanting the performance.
16.Similarly, in His Holiness Acharya Swami Ganesh Dassji v.
Sita Ram Thapar (1996) 4 SCC 526, a two-judge Bench of this Court observed that “readiness” means the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. To ascertain “willingness”, the conduct of the plaintiff has to be properly scrutinised. The Court noted:
“2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. […] The factum of readiness and willingness to perform the plaintiff's part 15/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 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. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”
17.The precedents of this Court indicate that the plaintiff must establish that he was “ready and willing” to perform the contract. In this regard, the conduct of the plaintiff must be consistent.
18.In another decision in Atma Ram v. Charanjit Singh (2020) 3 SCC 311, a two-judge Bench of this Court dealt with a case where an agreement for sale of immovable property was entered into between the petitioner and respondent. The date for performance of the contract was fixed as 7 October 1996. A legal notice was issued by the petitioner on 12 November 1996 seeking performance of the contract by the respondent, and thereafter a suit was filed. The plaintiff sought a mandatory injunction to direct the respondent to execute documents for transfer of the property. However, the trial court chose to treat it as a suit for specific performance of the contract. In declining the relief of specific performance, the Court observed:
“9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the trial court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner-plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12-11-1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7-10-1996 (marked as Ext. P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time 16/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13-10-1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10-1999) after issuing a legal notice on 12-11-1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance.”
28. No issue on readiness and willingness was framed by the trial court. The trial court analysed the notice issued by the appellants and held that the appellants made no demand from the respondent to discharge the mortgage liability. Thus, the appellants” plea that the respondent-plaintiff had to pay the loan and only thereafter, could the appellants execute the sale deed was rejected. The court also accepted the respondent”s argument that the advance amount of Rs. 10,000 was paid to discharge the mortgage. Further, the trial court observed that the documents submitted by the respondent indicate that he had sufficient means to purchase the suit property. The judgment of the trial court was upheld by the first appellate court and, in a second appeal, by the High Court.
29. All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent-
plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to 17/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 indicate his willingness to perform the contract. The trial court merely adverted to “document produced on behalf of the plaintiff” and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant.
37. In the context of the discretion under Section 20 of the Specific Relief Act, several decisions of this Court have considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. In Satya Jain v. Anis Ahmed Rushdie (2013) 8 SCC 131, this Court held:
“39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. […]
41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to 18/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour.”
41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract.
However, we order a refund of the consideration together with interest at 6% per annum.
13. Defendant-1 had issued a legal notice dated 30.05.1995 (Ex.B-1) to the Plaintiff. There was no reply from the Plaintiff. Whereas, the Plaintiff chose to issue a pre-suit notice dated 17.08.1996 (Ex.A-9) ie., after 1 year and 3 months, and again took 8 more months to file the suit on 06.03.1997. In effect, after knowing the stand of Defendant-1 as early as on 30.05.1995 (Ex.B-1), the Plaintiff has taken almost 2 years time to file the suit for specific performance. No explanation was forthcoming from the Plaintiff for the delay at every stage, before filing the suit. The Plaintiff who issued a legal notice on 17.08.1996, instituted a suit only on 06.03.1997, which would disentitle her to 19/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 get the discretionary relief of specific performance.
14. In support of this contention, the learned Counsel for the Appellant relied on the reported decision in the case of Atma Ram v. Charanjit Singh reported in (2020) 3 Supreme Court Cases 311, particularly paragraph 9, in which it is held as follows:
“9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance.
15. In the case of T.R.Murugesan v. S.Balakrishnan and Others reported in 2018 6 CTC 56, particularly paragraphs 30, 34 and 35 were 20/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 relied on which are held as follows:
“30. Even assuming that time is not the essence of the contract, under Section 16(c) of the Specific Relief Act, the plaintiff must be shown to have been ready and willing to perform the contract right from the date of the agreement till date of the filing of the suit. The agreement was entered into on 05.02.2007, it fixes the outer time limit for payment of sale consideration as 10.04.2007. It does not enable any extension of time, though the plaintiff would alleged that he has been demanding performance, the first written demand on his side was by way of Ex.A2 legal notice dated 11.07.2007 i.e. 3 months after the time fixed for performance of the contract. A reply notice is sent on 27.07.2007, the suit is filed on 02.11.2007, nearly 3 months after the receipt of the reply. There is no explanation whatsoever for the delay of three months, after the receipt of the reply notice.
34. Now, let us examine the case of the plaintiff in the light of the law declared by the Honble Supreme Court. Ex.A1 agreement was entered into on 05.02.2007 and it provided for payment of entire balance of sale consideration on or before 10.04.2007.
Admittedly, the plaintiff has paid a sum of Rs.2,00,000/- on the date of the agreement and further a sum of Rs.3,00,000/- on 27.02.2007, thereafter, the plaintiff has not done anything to show that he was ready and willing to perform his part of the contract, till he issued the legal notice under Ex.A2 on 11.07.2007. For nearly 3 months from the last date fixed for performance of the contract, namely 10.04.2007, the plaintiff has remained silent. Even though he would claim that he had approached the defendant seeking execution of the sale deed, the said claim was not supported by any proof. On receipt of the legal notice, the 1st defendant had sent reply on 27.07.2007 expressly stating that the plaintiff was not ready and willing to perform his part of the contract and he had no resources to pay the balance of sale consideration.
35. The plaintiff chose to wait for another 3 months to file the suit on 02.11.2007, this sustained inaction on the part of the plaintiff would definitely lead to an inference of the plaintiff was not ready and willing to perform his part of the contract. As pointed out by the Honble Supreme court in various decisions, cited supra, the 21/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 plaintiff must not only prove his readiness, he should also establish willingness. The proof affidavit of the plaintiff is totally lacking in particulars of the demands made by the plaintiff seeking execution of sale deed and offering to pay the sale consideration.
Mere proof of sale agreement based on the registration, the plaintiff cannot satisfy the conscious of the Court to believe her evidence to prove the truth behind the suit sale agreement. Proof of signature of Defendant-1, by examining the witness, the execution cannot be inferred. There must be evidence to show that Ex.A1 is made out of free consent of parties and there must be a lawful consideration. Only when the plaintiff has established the twin requirements of consensus ad idem between the parties and a valuable consideration, then the agreement can be termed as a valid contract.”
16. In support of this contention, the learned Counsel for the Appellant relied on the reported decision in the case of M.Jayaprakash Narayanan v. Santhammal and Others reported in 2018(1) CTC 701, particularly to paragraphs 11 and 12, wherein it is held as follows:
“11. Yet another strong circumstance available in this case makes Ex.A1 is more doubtful. The main contention of the plaintiff that as per the terms agreed in Ex.A1, the defendants 1 to 3 agreed to execute the sale in favour of the plaintiff or his nominee. Accordingly, the defendants 1 to 3 have sold 17 acres and odd at the instance of the plaintiff to his sister-in-law on 30.11.2007 i.e. the very next day of execution of Ex.A1. Ex.A17 sale deed in respect of sale of 17 acres and odd in favour of the plaintiff's sister-in- law by the defendants 1 to 3 when carefully scanned, infact, stamp papers for said sale was purchased on 28.11.2007 even much prior to the alleged agreement came into existence. These facts infact create serious doubt about the plaintiff's case and about the existence of agreement. If really the properties 22/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 were sold to plaintiff's sister-in-law only on the basis of Ex.A1, stamp papers for the sale deed dated 30.11.2007 should have been puchased only subsequent to the alleged agreement Ex.A1. Whereas the endorsement in Ex.A17 clearly shows that stamp papers were purchased even much before the Ex.A1 agreement. Thus, all the facts creates serious doubt about Ex.A1. Admittedly,
17 acres and odd sold to the plaintiff's sister-in-law as could be seen under Ex.A17. It is also admitted case that the purchaser under Ex.A17 namely, the plaintiff's sister-in-law and defendants 1 to 3 have also filed a suit for bare injunction against the third party in O.S.No.150 of 2008 in the year 2008 itself. These admitted facts infact clearly probabilise the defence theory that certain documents were handed over to the plaintiff's sister-in- law, who was joined in the suit O.S.No.150 of 2008 as against one Esakki muthu. The said suit is also decreed merely on the basis of the admission made by one of the defendants. Possibility of handing over the documents cannot be ruled out. Similarly, the plaintiff's sister-in-law has apparently in dominate position at the relevant time when she has purchased the property from the defendants 1 to 3. The possibility of retaining the documents under the guise of the suit is also cannot be ruled out. All these clearly probabilise the defence theory that the original documents relating to the title to the properties came into possession of the plaintiff only on the above circumstances. Therefore, we are constrained to hold that merely because the documents namely some of the title deed relating to the suit properties came into the possession of the plaintiff that itself cannot be sufficient for alleged execution of the Ex.A1 agreement. Though PW2 has supported the plaintiff in chief examination, his cross-examination has clearly shows that his evidence his totally unreliable. Infact, he has stated in his evidence that he has only attested the document alone, whereas he also stood as witness in Ex.A17. PW2 is involved in real estate business. His evidence clearly indicate that he is only an agent of PW1. Therefore merely because PW1 and PW2 have stated above the execution of document, taking into consideration the totality of the circumstances as discussed above, we are constrained to hold that the evidence of PW1 and PW2 does not satisfy the conscious of this Court to believe their evidence to presume the execution of Ex.A1 agreement, particularly the alleged consideration of 23/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Rs.40,00,000/- on the date of agreement is not been established at all. Therefore, mere signature of the parties were established on the basis of some interested witnesses of the parties, who wants to enforce the so called contract, in respect of the huge property, the execution cannot be infered merely on the basis of such witnesses, there must be evidence to show that Ex.A1 is made out of free consent of parties and there is a lawful consideration in the above agreement. Only when the plaintiff established that there was a conseus ad idem between the parties and a valuable consideration, then the above contract can be termed as a valid contract capable of enforcing before the Court of law. When the two elements namely, the free consent and lawful consideration are absent in the document. Such document cannot be considered for lawful consideration in the eye of law. Therefore, we are constrained to hold that Ex.A1 is not established as a true document. Accordingly, this point is answered.
12. A person seeking equitable relief must show his readiness and willingness from the inception of contract till the contract culminated into sale deed. Ready and willingness is a continuous process must be present through out the period of contract. Readiness is the capacity of a person to pay the remaining consideration. Willingness is a mental attitude to perform the part of his obligation. When both elements namely readiness and willingness are established by the plaintiff, then only the relief of specific performance can be granted. Though plaintiff in his plaint at paragraph 7 has stated that he was ready and willing to perform his part of the contract absolutely there is no pleading in the entire pleadings with regard to the nature of his performance of contract. Ready and willingness not only to be pleaded but also to be proved before the Court of law. Though the time has specified in the agreement to conclude the sale on or before 25.05.2008, the remaining sale consideration or part of the sale consideration has not been tendered by the plaintiff at any point of time. Nothing available even in the pleadings even to infer that any such attempt whatsoever made by the plaintiff in that aspect. It is further to be noted that having entered into the alleged agreement dated 29.11.2007, the plaintiff has issued only publication on 16.04.2009. Till such time he has not taken any steps to perform his part of obligation. PW1's oral and documentary evidence clearly shows that he was also aware of 24/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 the fact that item Nos. 6 to 8 of the I item of the suit property was sold to the fourth defendant on 05.05.2008. Even then, he remained mute spectator, without performing any of the contract, whereas for the first time, he has issued a publication on 16.04.2009, which is marked as Ex.A12. Ex.A12 is only publication to the general Public not to deal with the properties. It is to be noted that Ex.A12 was issued in the year 2009. Even in the above advertisement the alleged advance amount of Rs.40,00,000/- stated to have been given to the defendants 1 to 3 has not found place. Further, Ex.A12, is only a warning to the Public not to deal with the properties and nothing available in Ex.A12 to infer the readiness and willingness on the part of the plaintiff. The above publication also replied by the defendants under Ex.A13. Again, rejoinder was given wherein the plaintiff first time introduced in the rejoinder about the original documents said to have been handed over to the plaintiff on the date of agreement and the rejoinder also silent about the advance amount. Even in the above rejoinder, the plaintiff has never expressed ready and willingness to perform his part of contract. Thereafter, he filed the suit straight away on 29.09.2010. It is to be noted that as per Ex.A1, the alleged agreement, time stipulated was on or before 25.05.2008. It is to be noted that even though as far as immovable property is concerned time is not an essence of contract, when specific time specifically agreed between the parties the same makes the time as an essence of contract and cannot be ignored altogether. Though the plaintiff has made an attempt to show as if the defendants alone caused delay and not making marketable title and failed to demarcate the properties and identify the properties. Such stand of the plaintiff is nothing but an attempt to overcome the delay. If really the plaintiff was intended to purchase the property after proper identification and demarcation or after eviction of the encroachers, there was no reason as to why he has directed the defendants 1 to 3 to sell the property to his sister-in-law, the very next day of the alleged agreement. This fact also creates serious doubt about the plaintiff's contention. Even assuming that there are conditions agreed upon by the defendants to make the marketable title and they failed to do so, that itself will not relieve the plaintiff from taking some steps on his part. What would be the conduct of the parties who really intended to purchase the properties? Their 25/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 conduct would be to take minimum steps to demarcate the properties, etc., In this case absolutely there is no evidence whatsoever on record to show that the plaintiff has taken steps on his part. Therefore the readiness and willingness cannot be infered in this case. It is further to be noted that the plaintiff in his entire chief examination he is silent about his readiness and willingness. In the entire evidence, there is no piece of evidence even to infer readiness and willingness on his part. As already stated readiness and willingness must be established from the very inception and it is a continuous process. What are the sources for paying remaining consideration also absolutely there is no evidence. His capacity to mobilise the funds also not been established. All these facts clearly show that the plaintiff has not at all ready and willing to perform his contract. Accordingly we hold that the plaintiff is not entitled to specific performance at all.
17. Sections 91 and 92 of the Evidence Act is not a bar for Defendant-1 to let in oral evidence. The Appellant herein is not attempting to contend that the recitals contained in Ex.A-1 is to be varied or that the evidence let in on her side was to contradict the terms contained therein. According to Defendant-1, the entire evidence let in, both oral and documentary, are only to demonstrate that, in spite the existence of Ex.A-1, it has to be held that the parties had a different agreement altogether and Ex.A-1 was never intended to be acted upon.
18. In support of this contention, Kamireddi Sattiaraju and another v. Kandamuri Boolaeswari reported in 2007-1-L.W-309 was relied upon, in 26/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 which it is held as follows:
At the outset, it will have to be stated that existence of Ex. A-1 agreement was never in dispute. As far as application of Section 92 of the Indian Evidence Act is concerned, by virtue of Section 91, and having regard to the existence of Ex. A-1 agreement, the terms contained in Ex. A-1 are to be considered without any reference to any other oral evidence insofar as it related to the terms contained therein. In that respect, Sections 91 and 92 of the Indian Evidence Act are inter-dependent. In the light of the evidence available on record, both oral and documentary, as well as the application of Section 92 of the Indian Evidence Act, there is no scope to permit the appellants to contradict, vary or subtract the terms contained in Ex. A-1 agreement. Therefore, even taking Ex. A-1 agreement on its face value, what has to be considered is whether the contention put forward on behalf of the appellants that it was never intended to be acted upon, requires consideration. On this aspect, we find that the decisions relied on by learned Counsel for the appellants Mr. R. Subramanian as (supra) and (supra) fully support his contention.
15. In the judgment , in paragraph 22, the Supreme Court has stated the legal position as regards the substantive part of Section 92 of the Indian Evidence Act in the following words:
22. This Court in Gangabai v. Chhabubai and Ishwar Dass Jain v. Sohan Lal with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.
16. In the decision, the Supreme Court has held as under in paragraph 9:27/55
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Mudaliyar v. Vedathanni AIR 1936 PC 70 : 64 IA 126 is an authority for the proposition that the oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different.
17. From the above ratio laid down by the Supreme Court, when we analyse the stand of the parties, according to the appellants, irrespective of the fact that Ex. A-1 came into being, it was contended that the deed was never intended to be acted upon and that it was a sham document. When the said stand is probed into further, as held by the Supreme Court, the bar under Section 92 of the Indian Evidence Act vis-a-vis Ex. A-1 would operate if only the appellants attempt to rely upon Ex. A-1 agreement and simultaneously sought to vary and contradict its terms. Such is not the case of the appellants. The appellants are not attempting to contend that the terms contained therein are to be varied or that the evidence let in on their side was to contradict the terms contained therein. According to the appellants, the entire evidence let in both oral and documentary, was only to demonstrate that inspite of existence of Ex. A-1, it will have to be held that the parties had a different contract altogether and Ex.
A-1 was never intended to be acted upon. At the risk of repetition, we state that applying the ratio laid down by the Supreme Court, such a stand of the appellants was certainly not prohibited under Section 92 of the Indian Evidence Act.
19. Admission made in the evidence of P.W-1 would falsify her bonafides in a suit for specific performance. Simultaneously, Defendant-1 is an unlettered, rustic, aged lady and not conversant with the legal issues, and she pleads non est factum. In such event, it is for the plaintiff who was in dominant position over Defendant-1 to prove fairness and transparency under 28/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Ex.A-1 as per Section 111 of the Evidence Act. She cannot take undue advantage of the ignorance and innocence of the defendant in view of the bar u/s. 20 of the Specific Relief Act. Section 20(1) reads that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so. Section 20(2) of the Specific Relief Act also empowers the Court not to exercise discretion to decree specific performance, if
a) the terms of the agreement or conduct of the parties gives the plaintiff an “unfair advantage' over the defendant,
b) where the performance of the agreement would involve “some hardship” on the defendant which she did not foresee, and
c) though the circumstances do not render the contract voidable, but makes it “inequitable” to enforce specific performance.
20. Even though generally, time is not essence in an agreement for the sale of immovable property, the Courts below should have taken cognizance of the conduct of the parties, the escalation of the price of the property, and the attempt of the plaintiff to take unfair benefit from the decree. The Hon'ble Supreme Court AIR 2022 SC 1275 held that “the remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present 29/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 case, three decades have passed since the agreement to sell was entered into between the parties. Given the blemished conduct of the plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract.” This proposition of law is squarely applicable to the facts and circumstances of the case.
21. Finally, as on the date of the agreement (dated 01.03.1980), Defendant-1 was not the absolute owner of the construction put up in and over the suit property. As per the agreement with the Tamil Nadu Housing Board/ Defendant-2, the Appellant/Defendant-1 could acquire absolute title over the building only after payment of the entire installment between 01.07.1976 and 09.03.1996. Until the entire dues to TNHB is settled, Ex.A-1 is a void agreement within the meaning of Section 23 of the Indian Contract Act. Therefore, Defendant-1 was legally prohibited from entering into a suit sale agreement with the Plaintiff. Thus, the suit sale agreement is hit by Section 23 of the Contract Act.
22. Learned Senior Counsel A.L.Gandhimathi for M/s.C.T.Murugappan for Respondent-1, Plaintiff before the learned District Munsif submitted her arguments as follows:
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23. As per the submission of the learned Counsel for the Respondent, Respondent in this Second Appeal is the Plaintiff before the learned District Munsif, Coimbatore. It is the case of the Plaintiff that the Defendant-1 borrowed Rs.3,900/- from the Plaintiff in order to make initial payment regarding purchase of the suit property after allotment in the year 1976. The Defendant-1 had handed over possession to the Plaintiff on 01.03.1980 through a registered sale agreement entered into between the Plaintiff and the Defendant-1.
24. On 01.03.1980, at the time of entering the sale agreement, the sale price was fixed at Rs.16,000/-. On the date of the agreement, the Defendant-1 received Rs.8,000/- and agreed for the balance Rs.8000/- to be paid by the Plaintiff to the Defendant-2/Tamil Nadu Housing Board in monthly instalments of Rs.83/- per month. As per the sale agreement upon payment of all the instalments to the Tamil Nadu Housing Board and after the final payment, when the Tamil Nadu Housing Board released the property in favour of the Defendant-1, Defendant-1 would obtain the release from Defendant-2 and then execute the sale deed in favour of the Plaintiff. Accordingly, the Plaintiff had paid the instalments without any default till June 1996. The last 31/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 instalment under Ex.A-2 series was paid in June 1986. Thereafter, the Plaintiff issued notice on 17.08.1996 under Ex.A-9. After receipt of the same, a copy of Ex.A-9 was also sent to Defendant-2, Tamil Nadu Housing Board which was received under Ex.A-11. After receipt of the notice dated 17.08.1996 under Ex.A-9, since Defendant-1 failed to cooperate to execute the sale deed, the Plaintiff approached the Defendant-1 and the Defendant-1 demanded a further sum of Rs.25,000/-. The Plaintiff had fulfilled her part of the contract and obligation as contemplated in the sale agreement deed dated 01.03.1980. Since the Defendant-1 had failed to cooperate, the suit was filed for the specific performance of contract. The Defendant-1 resisted the suit. The Defendant-1 admitted execution of the sale agreement and also admitted receipt of sale consideration of Rs.8,000/-, but took a stand that the Plaintiff obtained thumb impression of the Defendant-1 on some unwritten stamp papers during February 1980 and subsequently, she was informed that an agreement of permissive occupation was being reduced into writing. Only recently she came to know that the Plaintiff had fraudulently created the sale agreement as if it was executed by the Defendant-1. The contention of the Defendant is that the sale agreement is neither true nor valid though signed by the Defendant. 32/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010
25. It is the claim of the Defendant-1 that the Plaintiff is in permissive occupation of the suit property and the suit is liable to be dismissed. The Plaintiff had filed the suit in O.S.No.515 of 1997 before the learned Principal District Munsif, Coimbatore. Further, the Defendant-1 had filed a suit in O.S.No.1617 of 1995 seeking declaration that she is the absolute owner of the suit property. However the suit was subsequently dismissed for default and the same has not been prosecuted which was marked during trial in O.S.No.515 of 1997 as Ex.A-12. The Plaintiff had examined herself as P.W-1 and marked documents under Ex.A-1 to Ex.A-13. The Defendant had examined herself as D.W-1. The staff of the Defendant-2 was examined as D.W-2. The daughter of the Defendant-1 was examined as D.W-3. The documents relied by the Defendant was marked as Ex.B-1 The Ex.B-1 is the copy of the legal notice issued by the Defendant-1 to the Plaintiff. Ex.B-2 is the reply from the Plaintiff to the notice under Ex.B-1 through the evidence of D.W-2. Ex.X-1 and Ex.X-2 were marked. Ex.X-1 is the accounts regarding copy of the accounts regarding payment of the monthly instalment towards the construction cost by the Defendant-1 to the Defendant-2. Ex.X-2 is the copy of the sale deed dated 10.04.1974 in favour of the Defendant-1. After full trial, on appreciation of evidence, the learned Principal District Munsif, Coimbatore by judgment and decree dated 01.04.2004 had arrived at a finding that the 33/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Defendant had executed the sale agreement and that the Defendant-1 had voluntarily affixed her thumb impression in the sale agreement and the same had also been admitted by her. There cannot be a contrary intervention by the party as she has consciously signed the registered sale agreement. Further it had been made clear from the evidence and the document that only in June 1996, the instalments were finally paid and thereafter the Plaintiff had issued a notice and filed a suit within a period of three years. Hence the suit was decreed. The Defendant-1 filed Appeal in A.S.No.5 of 2005.
26. The learned Principal Sub Judge, Coimbatore, after hearing the arguments of the Defendant before the trial Court as Appellant and the learned Counsel for the Plaintiff as Respondent by judgment in A.S.No.5 of 2005 by judgment dated 29.12.2009 dismissed the Appeal, thereby confirmed the judgment and decree of the learned Principal District Munsif in O.S.No.515 of 1997 on independent assessment of the evidence before the learned Principal District Munsif, Coimbatore, the learned Principal Sub Judge, Coimbatore had confirmed the decree observing that Ex.A-1 which is a registered document and there is presumption under Section 114(e) of the Indian Evidence Act and there are no reasons to interfere with the findings of the trial Court, thereby the Appeal was dismissed.
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27. The learned Principal Sub Judge had observed that the Defendant-1 had agreed that she had affixed her thumb impression in the registered sale agreement. The evidence of the Defendant-1 that it was only an agreement for permissive occupation was rejected. The claim of the Defendant-1 in the written statement is barred under Sections 91 and 92 of the Indian Evidence Act. Unless fraud or coercion and undue influence had been proved, the written contract cannot be denied by oral evidence. In spite of having knowledge of the agreement and after filing the suit for declaration, the Defendant-1 had not taken any steps to prove that it was only an agreement for permissive occupation. The question of readiness and willingness is not a mathematical formula. Both the trial Court as well as the Appellate Court had gone into in detail with regard to the conduct of the parties. It is very clearly proved by the documents under Ex.A-2 series that the last instalment was paid in June 1996. The original passbook under Ex.A-6 had been filed by the Plaintiff and the recitals in the sale agreement clearly provides that after the amounts are paid to Tamil Nadu Housing Board, the Defendant-1 will get proper release and then execute the sale deed. Hence as per the second limb of Article 54 of the Limitation Act, the suit is well within limitation. 35/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010
28. Further, the Plaintiff had proved her readiness and willingness with regard to the agreement. The learned Senior Counsel for the Respondent (Plaintiff before the learned Principal District Munsif) relied on the reported decision of the Honourable Supreme Court reported in the case of Motilal Jain v. Ramdasi Devi (Smt) and Others reported in 2000 (6) SCC 420, particularly to Paragraphs 4, 7 and 9 which are held as follows:-
“4. Mr.N.R.Choudhary, learned Counsel for the Respondents, contended that paras 6 and 11 of the plaint do not conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure and relied upon the decisions of this Court in Ouseph Varghese v. Joseph Aley and Abdul Khader Rowther v. P.K.Sara Bai. He argued that the trial Court ought to have framed an issue regarding readiness and willingness of the appellant but it failed to do so, therefore, the decree of the trial Court was rightly set aside by the High Court. He further contended that the conduct of the Appellant whose wife is denied by the Defendant, did not justify granting of discretionary relief of specific performance and the High Court had rightly denied the same.
7. The other contention which found favour with the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that contention placing reliance on the decision in Varghese case. In that case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant denied the alleged oral agreement and pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequent pleading and it was in that context that this Court pointed out that the pleading in specific performance should conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure. That view was followed in Abdul Khader Case.
9. That decision was relied upon by a three-Judge Bench of 36/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 this Court in Syed Dastagir case wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed:
“unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the Plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form.” It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject matter of the suit, the fact that, they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.
29. In the case of Sughar Singh v. Hari Singh (Dead) through Legal Rep , reported in 2021 (17) SCC 705 (Para 28 and 29), “28. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a 37/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant executant of the agreement to sell, while exercising the discretion judiciously.
29. For the aforesaid, even amendment to the Specific Relief Act, 1963 by which Section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now, the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed herein above, the same can be a guide.”
30. It is the submission of the learned Senior Counsel A.L.Gandhimathi that time is not the essence of contract. It has been clearly agreed that after the instalments has been paid, the Defendant-1 will execute the sale deed and once the last instalment is paid, the Plaintiff had issued a notice and thereafter had approached the Defendant-1 seeking execution of the sale deed and release of the documents from the Tamil Nadu Housing Board. Since the Defendant-1 had not cooperated with the same, the suit in O.S.No.515 of 1997 had been filed immediately. There is no question of any escalation of pricing in the 38/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 present case. Since the entire instalment had been paid by the Plaintiff as per the sale agreement. The contention of the Appellant (Plaintiff before the learned Principal District Munsif, that Ex.A-1 is a void agreement within the meaning of Section 23 of the Contract Act is incorrect. The agreement itself is that the entire instalments had to be paid by the Plaintiff and thereafter the Defendant-1 should get the release from the Tamil Nadu Housing Board and thereafter execute the sale deed. Therefore there is no legal prohibition against the Defendant-1 from entering into a sale agreement with the Plaintiff and the sale agreement is not hit by Section 23 of the Contract Act. Both the Courts had arrived on a factual finding in favour of the Plaintiff. There is no dispute on facts. Both the Courts below have concurrently found that the Plaintiff was ready and willing to perform the contract. The Plaintiff had performed her part of the agreement. It is only on the part of the Defendant-1 to execute the sale deed. The obligation on the part of the Plaintiff had already been completed. It is only on the part of the Defendant-1 to get release from the Tamil Nadu Housing Board the Defendant-2 and execute the sale deed. As such there is no question of any readiness and willingness being left unperformed by the Plaintiff. The suit had rightly been decreed. Therefore this Second Appeal has no merit and is to be dismissed.
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31. The Second Appeal had been admitted raising the following substantial question of law:
Whether the Courts below are right in decreeing the suit for specific performance without contesting the issue of readiness and willingness?
Heard the learned Counsel for the Appellant and the learned Counsel for the Respondents. Perused the records in O.S.No.515 of 1997 on the file of the learned Principal District Munsif, Coimbatore and the A.S.No.5 of 2005 on the file of the learned Principal Sub Judge, Coimbatore.
32. The parties in this Second Appeal are herein after referred as per the their status before the learned District Munsif, Coimbatore as Plaintiff and Defendant.
33. The Appellant in this Second Appeal is the Defendant-1 before the learned Principal District Munsif, Coimbatore in O.S.No.515 of 1997. The Respondent is the Plaintiff who had instituted the suit for specific performance of contract for sale of the property in O.S.No.515 of 1997. Here afterwards, the Appellant will be referred as Defendant-1 and the Respondent will be referred as Plaintiff.
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34. On perusal of the judgement of the learned Principal District Munsif, it is found that no issue had been raised regarding readiness and willingness of the Plaintiff to perform her part of the contract.
35. On perusal of the plaint averments in O.S.No.515 of 1997, the Plaintiff had in paragraph 7 stated that the Plaintiff had fulfilled her part of the act and obligation as contemplated in the sale agreement deed dated 01.03.1980. The Defendant-1 has to cooperate with the Plaintiff to secure the title deed from the Defendant-2 to the name of the Plaintiff and also is bound to repay the excess amount paid by the Plaintiff. Since the Defendant-1 refused to comply, the suit was filed for specific performance and recovery of the amount. The learned Principal District Munsif failed to frame issue regarding the same. The Defendant-1 in the written statement clearly stated that she had never borrowed Rs.3,900/- from the Plaintiff in order to make initial payment regarding purchase of the schedule mentioned property. She had asserted that she is the absolute owner of the suit property allotted by the Defendant-2 under registered sale deed vide Document No.1400/1974 on the file of the Sub Registrar, Coimbatore and she had deposited the sale deed to the Tamil Nadu Housing Board under an agreement for construction of house in the vacant site. The Defendant-2 after the said construction of the house had 41/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 handed over possession to the Defendant-1 for her own use and occupation. It was agreed that Rs.83/- per month for a period of 20 years would be paid by the Defendant-1 towards the construction cost payable to the Defendant-2. The Defendant-1 have disputed the claim of the Plaintiff that she had accepted Rs.8000/- on the date of sale agreement and agreed towards payment of Rs.83/- per month by the Plaintiff towards the construction cost.
36. It is the contention of the Defendant-1 in the written statement that she had permitted the Plaintiff as a permissive occupier of the suit property and to pay Rs.83/- per month on behalf of the Defendant-1 to the Defendant-2, Tamil Nadu Housing Board towards construction cost for 20 years. After completion of the said amount, she had sought the Plaintiff to vacate and handover the possession to the Defendant-1. The Defendant-1 issued legal notice dated 30.05.1995 marked under Ex.B-1 directing the Plaintiff to hand over vacant possession. Without replying to Ex.B-1, the Plaintiff had issued notice under Ex.A-9, which was issued subsequent to Ex.B-1. Since the receipt of notice, the Plaintiff had not vacated. The Defendant had filed a suit against the Plaintiff before the learned I Additional Sub Judge, Coimbatore in O.S.No.1617 of 1995 seeking declaration that the Defendant-1 is the absolute owner of the property and seeking recovery of possession. 42/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010
37. The claim of the Plaintiff that she had perfected her title by adverse possession is not maintainable It is stated in the written statement that the Defendant-1 is an illiterate poor widow. She had executed construction agreement with the Defendant-2 in the year 1976. The claim of the Plaintiff that she had entered into sale agreement deed dated 01.03.1980 marked as Ex.A-1 is an agreement registered with the Sub-Registrar.
38. In the sale agreement, which is a registered sale agreement under Ex.A-1, it is stated that the Plaintiff had paid Rs.8,000/- on 01.03.1980 and Plaintiff undertook to pay the monthly installments of Rs.83/- for 20 years to the Defendant-2 and on completion of the payment in full, the Defendant-1 agreed to release the original title deed from the Defendant-2 and execute the sale deed in favour of the Plaintiff. The sale agreement under Ex.A-1 identifies the Plaintiffs as party on the second part and the Defendant-1 as party of the first part. The Defendant had in her evidence reiterated the contents in the written statement. She had admitted her thumb impression before the Sub- Registrar. It is a clear case that the Plaintiff took her to the Sub-Registrar Office informing her that the agreement between the Plaintiff and the Defendant regarding permissive occupier is to be reduced into writing. 43/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Believing her words, she was taken to Sub-Registrar Office and no one had informed her that it was for registering the sale agreement. Because of her illiterate status, she was taken for a ride. Only when she caused notice to the Plaintiff to vacate and hand over possession, she had come to know about the sale agreement deed. Her claim is supported by the evidence of D.W-2. The Official of the Tamil Nadu Housing Board, D.W-3, the daughter of the Defendant-1D.W-2 had marked Ex.X-1 regarding the accounts of the Tamil Nadu Housing Board regarding construction cost and repayment of the monthly instalment on behalf of the Defendant-1. If the oral evidence of Defendant-1 is to be accepted, she had permitted the Plaintiff to occupy the house and pay the rent. Instead of paying the rent to the Defendant-1 she had permitted the Plaintiff to pay the rent as EMI to the Tamil Nadu Housing Board/the Defendant-2. She had handed over the Passbook to the Plaintiff and permitted the Plaintiff to pay the EMI to the Defendant-2. When tax was levied, it was found to be high, therefore she had requested the Plaintiff to file appropriate petition before the Authorities concerned seeking reduction of the house tax which was done by the husband of the Plaintiff. All the documents such as water supply, electricity connection are all in the name of the Defendant-1 but in the custody of the Plaintiff. She had voluntarily given it to the Plaintiff. Therefore on the date of the agreement of sale, it is not an 44/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 enforceable contract as per the reported decision relied by the learned Counsel for the Defendant-1 in the case of P.M.Thangavel vs M. Ramamurthy and others reported in CDJ 2019 MHC 3786.
39. As per the reported decision of this Court in the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023, the Plaintiff cannot seek relief. The Plaintiff can only seek relief of recovery of money. The facts of the reported decision is different wherein the Plaintiff in the reported decision undertook to clear the mortgage loan. Here, in this case, the Plaintiff is stated to be a permissive occupier, where instead of paying rent to the Defendant-1, the Defendant-1 directed the Plaintiff to pay the monthly installment to the Defendant-2/Tamil Nadu Housing Board. Therefore, she was put in a position as a permissive occupier and the Defendant-1 had not received rent. She had handed over the passbook for payment of the EMI to the Defendant-2. Accordingly, the Defendant-2 had issued recitals in the name of the Defendant-1 which is in possession of the Plaintiff. Therefore, she is only a permissive occupier and the oral contract is treated as lease and not sale agreement. Ex.A-1 cannot be put into service by the Plaintiff, as it is a violation of the condition of agreement between Defendant-1 and Defendant-2/Tamil Nadu Housing Board as it is an obligation 45/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 to help the poor people to own house and house sites and there are stipulations that it should not be encumbered in violation of the said condition. The Plaintiff had filed a suit seeking specific performance of contract. The claim of the Plaintiff in the Plaint that the Plaintiff had fulfilled her part of the contract cannot be sustained by any Court of law in the light of the specific agreement between Defendant-1 and the Defendant-2, Tamil Nadu Housing Board. Therefore it is an unenforceable contract as per the case of P.M.Thangavel vs M. Ramamurthy and others reported in CDJ 2019 MHC 3786.
40. The submission of the learned Senior Counsel for the Plaintiff is that readiness and willingness is not a mathematical formula and is not applicable to the facts of this case in the light of the decision of P.M.Thangavel vs M. Ramamurthy and others reported in CDJ 2019 MHC 3786. When there is agreement pending between Defendant-1 and Defendant-2, the Defendant-1 shall not create encumbrances. The sale agreement entered into by the Plaintiff with the Defendant-1 on 01.01.1980 even though registered is an unenforceable contract. Merely because the sale agreement had been registered does not give a presumption that the sale agreement is bona fide. In the light of the reported decision in the case of P.M.Thangavel vs M. Ramamurthy and others reported in CDJ 2019 MHC 3786, when Tamil Nadu 46/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Housing Board had insisted for certain conditions, during the period of such condition, a sale agreement had been obtained from the illiterate poor widow by the Plaintiff which cannot be accepted by any Court of law. It is an unenforceable contract, in violation of a contract between the Tamil Nadu Housing Board, a Statutory body with its social obligations to grant house site to poor people. Here the economic status of the Defendant-1 was exploited by the Plaintiff and the illiterate status of the poor widow was exploited by the Plaintiff. There are many number of examples that the Registration Department registers documents if the conditions of registrations are fulfilled but that does not create bona fides on the parties to insist for its enforcement in a Court of law. Even lands vested with the Government are also registered under deeds with the Registration Department which has come to judicial notice through complaints from the party who lost money to the land sharks. Therefore, the presumption that is pressed into service under Section 114(e) of the Indian Evidence Act claiming that the Plaintiff had voluntarily executed a sale agreement in favour of the Plaintiff cannot be accepted and sustained by any Court of law exercising judicial discretion. The Court has to weigh the balance of convenience before ever granting the discretionary relief. Here, it is a specific case of the Defendant-1 that she never had an idea to sell or part with the property, if there is violation of condition, the Tamil Nadu Housing 47/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 Board has the power to forfeit the property during the period of agreement between Defendant-1 and Defendant-2. The Plaintiff had entered into an agreement on 01.01.1980 which is unenforceable on the date of the agreement. Therefore the Court need not consider the recitals in Ex.A-1. The presumption under Section 92 of the Indian Evidence Act will not hold good to the facts of this case under Ex.A-1. The evidence of the Plaintiff is as per the agreement between Defendant-2 and Defendant-1 which is contrary to Ex.A-1. Ex.A-1 cannot be enforced as on the date of its execution i.e., on 01.01.1980. Therefore the judgement in the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023 is different from the facts of the case before this Court. The reliance placed by the learned Counsel for the Defendant-1 regarding Mortgagee and Mortgager are not applicable to the facts of this case. The mortgage is between the Defendant-1 and the Defendant-2. Also, the site was allotted to the Defendant-1 by the Tamil Nadu Housing Board.
41. The reported decision in V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023 is applicable only regarding Sections 92 and 93 of the Transfer of Property Act. But the observation in the said decision that the Plaintiff is entitled to recover money 48/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 is not applicable to the facts of this case as the Plaintiff who had been living in the suit property constructed by the Tamil Nadu Housing Board in favour of the Defendant-1 and had paid EMI on behalf of the Defendant-1 to the Defendant-2 instead of paying rent to the Defendant-1. Therefore in the light of the reported ruling in the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023, the Plaintiff in this case is not entitled to recovery of the money also. What had been stated by the Plaintiff in the evidence if proved regarding over and above the dues paid to the Tamil Nadu Housing Board, she can recover it from the Tamil Nadu Housing Board by filing proper application through Defendant-1 otherwise she is not entitled to it. It is to be treated as payment made towards rent thereby, she cannot claim the same.
42. In the case of Sughar Singh v. Hari Singh (Dead) through Legal Representatives and Others reported in (2021) 17 Supreme Court Cases 705. Para 28 is not applicable to the facts of this case. In the light of the judgement of this Court in the case of P.M.Thangavel vs M. Ramamurthy and others reported in CDJ 2019 MHC 3786 when the agreement between Defendant-1 and Defendant-2 is pending with a specific condition then it should not be encumbered creating a sale agreement in the year 1980 violating the 49/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 conditions of the Tamil Nadu Housing Board exploiting the illiterate and poor economic status of the Defendant-1 as on 01.01.1980. Even though it is a registered deal, it will not give the contract the status of an enforceable contract. Therefore the observations in para 28 of the reported ruling in the case of Sughar Singh v. Hari Singh (Dead) through Legal Representatives and Others reported in (2021) 17 Supreme Court Cases 705 cannot be applied to the facts of this case before this Court. Therefore the submissions made on behalf of the Plaintiff by the learned senior Counsel A.L.Gandhimathi is to be rejected.
43. The submission of the learned Counsel for the Defendant-1 that the Plaintiff had not pleaded readiness and willingness is rejected in the light of the specific pleadings that the Plaintiff had pleaded readiness and willingness. The reliance placed by the learned Counsel for the Defendant-1 in the reported decision in J.P.Builders and another v. A.Ramadas Rao and another reported in (2011) 1 Supreme Court Cases 429 will not hold good to the facts of this case as the Plaintiff had clearly stated that she had fulfilled a part of the contract.
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44. The reliance placed by the learned Counsel for the Defendant-1 in the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023, where Sections 92 and 93 of the Transfer of Property Act is applicable to the facts of this case. The agreement is to be construed as the Plaintiff repaying monthly instalment on behalf of Defendant-1 and having entered into sale agreement deed under Ex.A-1 before the expiry of the period, which attracts the decision in the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in MANU/TN/0459/2023 which concerns an unenforceable contract by the same rulings. In the reported decision, the Plaintiff was granted an alternate relief of recovery of money. In this case, there cannot be recovery of money by the Plaintiff as the Plaintiff was permitted to reside in the house. Instead of paying the rent to the Defendant-1, the Defendant-1 had permitted the Plaintiff to pay the EMI of Rs.83/- per month to the Defendant-2, Tamil Nadu Housing Board. Therefore, nothing remains to be paid to the Plaintiff.
45. On appreciation of evidence, the claim of the Defendant alone is proved. The learned trial Judge failed to consider the evidence of the Defendant-1 and the evidence of the Defendant witnesses 2 and 3. The learned Principal District Munsif had considered the fact that the Plaintiff had 51/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 executed her undertaking under Ex.A-1 by paying the dues to the Tamil Nadu Housing Board over a period of 20 years. Ignoring the fact that she was residing in the house and, instead of paying rent to Defendant-1, she had paid EMI to the Tamil Nadu Housing Board on behalf of the Defendant-1, which will not give her the right to seek specific performance of the sale agreement. The Sale agreement was unenforceable on the date of its execution ie., 01.01.1980. In the plaint, the Plaintiff had claimed that she had perfected her title by adverse possession. The said claim of the Plaintiff also cannot be accepted by any Court of law. She was a permissive occupier. She was permitted by the Defendant-1 as a permissive occupier. She cannot claim adverse possession which is through illegal means against the interest of the landlord or the owner of the property right from inception. Only in such cases if the owner of the property had not taken action to evict the trespasser, the trespasser can claim that he had perfected his/her title by adverse possession. The action of the trespasser shall be open to the knowledge of the owner of the property, and when the owner of the property does not take legal action within the specified time then the so called Trespasser/Encroacher is claimed to have perfected his title to the property under the principle of adverse possession. The claim of adverse possession by a person who is in possession of the property as permissive occupier is unacceptable before any court of law as his 52/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 possession at the inception was by legal means. The learned Principal District Munsif failed to consider the fact that on the date of 01.01.1980, the Defendant-1 was restrained from entering into such deed. Therefore, the observation by the learned Principal District Munsif that the Defendant-1's action is a voluntary action cannot be accepted by any Court of law as the property was vested with Tamil Nadu Slum Clearance Board/Housing Board. Only on completion of payment of Equal Monthly Instalment, the Defendant-1 would become the owner of the property. As on date of execution of Ex.A-1, Defendant-1 had not become owner of the property. As on the date of Ex.A-1, it is an unenforceable contract which cannot be enforced by the Court of law. The learned Principal Sub Judge as Appellate Authority also failed to consider the same.
46. The reliance placed by the learned Senior Counsel for the Plaintiff that the suit filed by the Defendant-1 seeking declaration of title to the suit property and for recovery of possession was dismissed for default cannot be sustained. She has every right to restore the suit.
47. In the light of the above discussion, the Substantial Question of Law is answered in favour of the Defendant-1 and against the Plaintiff. Both 53/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm ) S.A.No.754 of 2010 the Court failed to consider the materials before the trial Court in their proper perspective.
In the result, the Second Appeal is allowed. The decree and judgment dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned Principal Sub Judge, Coimbatore confirming the decree and judgment dated 01.04.2004 in O.S.No.515 of 1997 on the file of the learned Principal District Munsif, Coimbatore are set aside. No costs. Consequently, connected miscellaneous petition is closed.
24.06.2025 Shl Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order To
1. The Principal Sub Judge, Coimbatore.
2. The Principal District Munsif, Coimbatore.
3. The Section Officer, V.R. Section, High Court Madras.
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shl Judgment made in S.A.No.754 of 2010 24.06.2025 55/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 04:32:41 pm )