Madras High Court
Arunachala Mudaliar vs Jayalakshmi Ammal And V.R. ... on 9 January, 2003
Equivalent citations: AIR2004MAD180, 2003(1)CTC355, (2003)1MLJ626, AIR 2004 MADRAS 180, (2003) 1 MAD LW 673 (2003) 1 MAD LJ 626, (2003) 1 MAD LJ 626
Author: Prabha Sridevan
Bench: R. Jayasimha Babu, Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The second respondent/first defendant owned the suit property. The appellant / second defendant claims to have purchased the property bona fide on 22-04-1982. Ex-B4 is the sale deed and Ex-B5 is the sale agreement dated 25-11-1981 that is said to have preceded it. On the other hand, the first respondent/plaintiff claims to be entitled to specific performance of the sale agreement Ex-A7 dated 06-02-1982, between her and the first defendant. The first defendant after filing the written statement remained ex parte. The Trial Court dismissed the suit. On appeal, the learned Single Judge granted a decree.
2. According to the plaint, on 03-08-1981, an agreement was entered into between the first defendant and the husband of the plaintiff for conveying the suit property for a price of Rs.24,410/-. A notice dated 1.1.1982 was issued by the plaintiff's husband and a suit was filed. Other suits for injunction and other reliefs were filed by the parties herein against each other. To purchase peace, a Panchayat was convened and the well-wishers of the village persuaded the plaintiff and the first defendant to cancel the agreement dated 03-08-1981 and to enter into a fresh agreement, to purchase the property for a higher consideration. So the suit agreement, Ex-A7 dated 06-02-1982 was entered into. The sale consideration was fixed at Rs.37,500/- and a sum of Rs.5,000/- is alleged to have been received as advance.
3. Further according to the plaintiff, she was put in possession of the property in part performance of the agreement and permission was given to the first defendant to harvest the paddy in existence in the field at the time when the keys of the pump set was handed over to the plaintiff. The defendant is only an agricultural coolie incapable of paying any amount for purchasing a suit property and he was fully aware of the Panchayat and had notice of the same and cannot claim to be a bonafide purchaser without notice of the suit agreement. Since the second defendant trespassed into the property, the suit notice dated 25-04-1982 was issued. There was no response. The suit has been filed.
4. The first defendant, filed his written statement denying the suit agreement, the Panchayat, and that the second defendant is his coolie. According to him, the second defendant is a cultivating tenant in possession of the suit property and the suits filed by him were on his own accord and not in collusion with the first defendant and in any event, possession was never handed over to the plaintiff. The plaintiff and her husband had purchased all the neighboring lands and therefore with the mala fide intention of knocking off the suit property, Ex.A.7 has been concocted. It was alleged that the plaintiff has not come to Court with clean hands and was not entitled to the discretionary relief of specific performance, and that in any event, she has no case, since if she had, she would have deposited the sale consideration into Court. It is clear that she is dabbling in litigation without any bona fide intention.
5. The second defendant(appellant) also filed his written statement denying the participation in the Panchayat. According to him, he is not an agricultural coolie, but a cultivating tenant in possession of the suit property. He had no notice of Ex.A.7 agreement. The case that the plaintiff was in possession is totally false and the decree should not be granted.
6. The Trial Court found that Ex.A.7 was a genuine agreement. Other issues were held in favour of the defendant. The second defendant was found to be a bonafide purchaser for value without notice and on issue No. 7 it was found that possession was not with the plaintiff. The Trial Court dismissed the suit.
7. On appeal, however, the learned single Judge held that the case of the plaintiff, that Ex.B.5 agreement and Ex.B.4 sale deed were born out of collusion between defendants 1 and 2 cannot be brushed aside as an unreasonable one. The discrepancies in the evidence of some of the defence witnesses persuaded the learned single Judge to come to this conclusion. As regards the case that the plaintiff had not withdrawn her suits as agreed and therefore, was not entitled to a decree, the learned Single Judge, held that the non-withdrawal of the suit was not fatal to the suit. The appeal was allowed on 20-08-1998. It appears to have been listed again on 12-12-1998, on which date, the learned single Judge granted time to the plaintiff to deposit the balance amount on or before 31.1.1999 to have the sale deed executed.
8. Mr. M.S. Subramanian, appearing for the appellant/second defendant submitted that though originally the case of the defendants was that Ex.A.7 is not genuine since there is a concurrent finding on that aspect and because the appellant is the second defendant who is not a party to Ex.A.7, he would be restricting his submissions on the other grounds viz., the plaintiff has not performed his part of the contract, and was not ready and willing and that the plaintiffs had not come to Court with clean hands. Elaborating this, the learned counsel said that the plaintiff ought to have withdrawn the pending suits before claiming specific performance and also deposited the balance consideration. Since she did neither, she was not ready and willing. The plaintiff's case of possession was found to be untrue as also the trespass by the second defendant. So a false case had been filed. Therefore she was not entitled to specific performance. In addition, the second defendant's possession as a cultivating tenant was confirmed by both the Courts. So the plaintiff is not entitled to any decree in her favour since he is not asked for possession.
9. He relied on the following judgments:-
1. A.C.ARULAPPAN v Smt. AHALYA NAIK
2. LOURDU MARI DAVID v LOUIS CHINNAYA AROGIASWAMY
3. MALLAYA GOUNDER AND ANOTHER v P.RAMASWAMI GOUNDER ETC. AND THREE OTHERS (1993 (2) LW Page 86)
4. BISHANDAYAL AND SONS v STATE OF ORISSA (2001 1 SCC Page 555).
10. Mr. M.N. Padmanabhan, learned Senior counsel for the plaintiff/first respondent submitted that the first defendant had remained ex parte and since the sale agreement is only with the first defendant and had been found to be genuine concurrently by both the Courts, the decree granted was correct. The appellant, is only a subsequent purchaser and cannot defeat the decree for specific performance. It was submitted that unless the second defendant shows that he was a bonafide purchaser for value he cannot succeed in the appeal. Apart from the plaintiff's husband, P.W.1, three other witnesses had spoken to the genuineness of the Panchayat and the presence of the second defendant at the time of Ex-A7. He also submitted that even assuming the plaintiff's case that she was put in possession has been rejected by both the Courts, that cannot amount to false pleadings so as to dis-entitle the plaintiff of her remedy since not all false cases result in dismissal of the suit for specific performance. It is only when the falsity goes to the root of the agreement that the Court can dismiss the suit.
11. He also submitted that the agreement, Ex-B5 which is relied upon by appellant itself shows that the tenancy has been cancelled and therefore his case that he is in possession as a cultivating tenant cannot be believed. It was also submitted that the oral and documentary evidence prove beyond doubt that the second defendant did not have the wherewithal to purchase the property and Exs-B4 and B5 had been brought about only to defeat the rights of the plaintiff. It was also submitted by him that the explanation to Section 16(c) shows that it was not necessary that the plaintiff who deposit the amount into Court or produce cash to show his readiness and willingness. It was also submitted that these grounds that were now urged of "lack of readiness, willingness and unclean hands" were not urged earlier at the time of trial and therefore it was not open to the appellant to raise this ground at this late stage. Learned Senior counsel relied on 1996 1 LW 675 (GURUSWAMI GOUNDER v KESAVA REDDIAR AND ANOTHER), 1996 2 LW Page 1 (PACHAIAPPAN AND OTHERS v S.P.KOON MARI).
12. Section 16(c) of the Specific Relief Act, 1963 personally bars the Court from granting relief to a person who does not prove that he is ready and willing to perform the essential terms of the contract. As explanation of Clause (c) relating to readiness and willingness it is stated that "it is not essential for the plaintiff to actually tender to the defendant or to deposit any money except when so directed by the Court." Section 19 deals with relief against parties and persons claiming under them by subsequent title and it is seen that as per the Section, specific performance of the contract may be enforced against any person other than the party to the agreement claiming under either of them by a title arising subsequent to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 20 makes it clear 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.
13. The two following paragraphs in Ex.A.2 are relevant. According to the following recitals the first defendant had agreed to register the document on or before 05-05-1982 and if he refused to do so or if he tried to evade registration, the plaintiff shall deposit a sum of Rs.32,500/- in his name in the Vellore District Munsif Court and pray for registration of the sale deed :-
@mg;go ehd; nkw;go fhy 05/05/82e; njjpf;Fs; ehd; up$p!;lh; bra;J bfhLf;f fhyjhkjk; Vw;gl;lhYk; ehd; j';fSf;F hp$p!;lh; bra;J bfhLf;f kWj;jhnyh my;yJ Vkhw;wpdhnyh vdf;F nruntz;oa U:gha; 32.500/00 Kg;gj;jp ,uz;lhapuj;J IE}Wk; vd; bgaupy; ntY}h; o/K/nfhh;l;oy; vd; bgaupy; oghrpl; bra;Jtpl;L nrh;e;j up$p!;jh; bra;J bfhs;s ntz;oaJ/@ It was agreed that the sale deed would be registered as soon as the suits filed against the first defendant as well as the second defendant are withdrawn. mj;Jld; jh';fs; vd; bgaupYk;. Vd; Typ Ms; mUzhryk; nghpYk; bfhLj;Js;s vy;yh nf!;fisa[k;
xg;gk; ////
4074 b$ayc&;kp
4/2/1982 fh';nfaey;Y}h;
jh';fs; thg!; bgw;wgpwF ,e;j tpf;fpua mf;fphpbkz;oy; fz;l brhj;Jf;fs; g{uht[k; ehd; fpuak; bra;J bfhLf;f rk;kjpf;fpnwd;
14. Learned single Judge, came to the conclusion that the evidence of PW.1 would disclose that the case filed by the plaintiff's husband against the first defendant had come to an end even though he had not withdrawn the case and that there was no suggestion that the case filed by the plaintiff against the first defendant is not pending and that it is not the case of the first defendant in his pleadings that the plaintiff had failed to perform her part of the contract by non-withdrawal of the case and on this ground, the learned single Judge rejected this plea. In his evidence, PW.1, the plaintiff's husband has stated that the case filed against the second defendant has not been withdrawn and is still pending. The case filed against the first defendant has not been withdrawn and it had come to an end and that no notice had been given to defendants 1 and 2 for not withdrawing the cases as per the agreement. PW.3 has stated that he is not aware of the cases between the first defendant and PW.1 and whether they have been withdrawn. As seen already, the first defendant remained ex parte and he did not get into the box. The second defendant who is the appellant alone was examined as DW.1. He has stated in his evidence that the plaintiff had not withdrawn the case filed by her against Rajasekaran, the first defendant and that she had got an exparte decree. Therefore, there are indeed materials to show that the defendant had tried to ascertain whether the suits had been withdrawn by the plaintiff. Not only P.W.1 had been examined regarding the tendency of the suits, but the other witnesses have also been examined. As regards the recitals in the agreement, for withdrawal of the suit, the case of the first defendant in the written statement was that Ex.A.7 itself was false. The second defendant's written statement does not refer to the withdrawal of the suit since according to him, he was not present at the time of the Panchayat and he does not know anything about the agreement dated 6.2.1982. As regards the deposit of the balance of sale consideration, in Ex-A7 there is a specific clause relating to this. In his evidence, P.W.1 has stated that he has already deposited the money. This is obviously incorrect since the learned Senior counsel submitted that pursuant to the order dated 12-12-1998, after the appeal was allowed, the plaintiff had deposited the amount. Therefore, the plaintiff had not deposited the amount on or before 05-05-1982, when she filed the suit for specific performance. Neither in the judgment of the trial Court or in the appellate judgment is there a finding regarding readiness and willingness. From the pleadings and the oral evidence it is clear that no deposit was made in the Vellore District Munsif Court before the suits for specific performance was filed. The plaintiff had also not withdrawn the cases as agreed to in Ex-A7.
15. The pleadings are contradictory with regard to the position of the second defendant. The fourth paragraph of the plaint, "it is pleaded that the second defendant who is only the agricultural coolie ...... has been instigated to file suits "
and in the sixth paragraph, it is pleaded that, ".....the second defendant who is the close friend and associate of the first defendant has been colluding with the first defendant"
and therefore, the plaintiff is not clear whether the second defendant is only a coolie or the servant of the first defendant or a close friend or an associate of the first defendant. In any event, both the Courts have held that the second defendant is a cultivating tenant in possession of the suit property and the submissions made before us do not persuade us to disturb this finding. The plaintiff has based her suit on agreement Ex.A.7 which has been found to be genuine. However, the plaintiff's case that she had been put in possession is false and therefore, the recital in Ex-A7 is also untrue. There is absolutely no oral or documentary evidence that she has been put in possession pursuant to the agreement. The learned single Judge also held that the evidence of DWs.2 to 4 will disclose that the second defendant is in possession of the suit property and that the documentary evidence is also supportive of this case.
16. As regards the presence of the second defendant at the time of Ex-A7, the trial Court finds he was not present at the time of the agreement. The learned single Judge, also rejects Exs.B5 and B4 only on the ground they must have come into existence only because of the collusion between the defendants 1 and 2. The learned single Judge has not found that Ex-A7 agreement was entered into in the presence of D2. In fact the learned Single Judge observes:
"D.W.1, who was not a party to Ex-A7 dated 06-02-1982 would admit during the cross-examination that he knows nothing of Ex-A7."
Therefore, we must accept the appellant's case that he had no notice of Ex-A7. The learned Single Judge rejected Exs-B4 and B5 for yet another reason. D.W.1's evidence is that the discussion regarding sale concluded two days before Ex-B5. The stamp paper for Ex-B5 was purchased in September 1981. The learned Single Judge concluded that it is unbelievable that stamps would have been purchased two months before the intended agreement. But if the evidence is read as a whole it shows that the negotiation started two months prior to the agreement and concluded two days before the agreement. This explains satisfactorily why and how the stamp papers came to be purchased in September. The evidence of D.W.4 is that Exs-B4 and B5 were registered on the same day and that the witnesses signed on the same day. For this reason too, Exs-B4 and B5 are rejected. But earlier in her evidence the same witness says that the agreement was executed in November. When the evidence is read as a whole it is clear that Ex-B5 came into existence in November and Ex-B4, six months later. There is no evidence of collusion between the first defendant and the second defendant. Therefore, the Trial Court's acceptance of Exs-B4 and B5 and finding that the second defendant is a bona fide purchaser for value without notice has to be confirmed.
17. The plaintiff has alleged that on 25-04-1982, D2 armed with the sale deed attempted to trespass on the suit property and immediately she had filed the suit after issuing the notice. This case of trespass clearly fails since both the Courts have been found that it is not the plaintiff who is in possession but D2. Therefore D2 could not have interfered with the plaintiff's possession on 25.4.1982. As regards the suit notice dated 25.4.1982, the case of the defendants is that they had not received the suit notice. The plaintiff has not established the actual issue of the suit notice by filing the acknowledgement due of the suit notice or postal proof of post. Therefore the alleged trespass on 25-04-1982 is obviously false.
18. The learned Senior counsel would submit that when the first defendant remains ex parte, the Court must necessarily decree the suit since it is the first defendant who has entered into an agreement. This submission has to be rejected. Section 20 of the Act is clear that the Court has the discretion to decide whether the plaintiff for specific performance is entitled to the relief. This discretion, the Court can rightly exercise even if the sole defendant remains ex parte. The ground that the subsequent purchasers cannot raise the plea of readiness and willingness has to be rejected. In Ram Awadh (dead) by LRs. Vs. Achhaibar Dubey , the Supreme Court held that "the obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses a, b and c thereof. The Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement..... there is, therefore, no question of the plea being available to one defendant and not to another."
19. And again in Bhagwandas Fatechand Daswani Vs. H.P.A. International (2001 III CTC 86) a Division Bench of this Court (of which one of us was a party)held that, "Subsequent purchasers even one who has purchased with knowledge of the agreement is entitled to plead by way of defence any ground available to him under the law relating to contract .... relief having been claimed against the purchaser, plea regarding existence of an enforceable contract can be raised by the purchasers."
Therefore, it is clear that there is nothing to prevent the second defendant herein from raising any ground that is available to the first defendant.
20. In (cited supra) the Supreme Court held that, "In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
It was also held therein that the decree for specific performance is entirely the discretion of the court, but the discretion should not be refused arbitrarily, but on sound principles of law capable of correction by an appellate court. In (cited supra), the Supreme Court held that merely because it is lawful to grant specific relief, the Court may not grant the order.
22. In 2001 1 SCC 555 (cited supra) it was held where one of the terms of the agreement for sale was that the appellant should withdraw their suit for specific performance and the suit was not withdrawn the plaintiff cannot be said to be ready and willing to perform their part of the agreement.
23. In 1993 II L.W. 86(cited supra) a Division Bench of this court held that relief cannot be granted when a false case with regard to delivery of possession was concocted for the purpose of the case.
24. In the present case, therefore, the appellant is entitled to urge that the respondent is not ready and willing. Though the respondent had agreed to withdraw the pending cases, she had not only not done that, but also had obtained a decree ex parte. The respondent had also claimed that she was in possession and that the appellant had interfered with her possession on 25-04-1982. The evidence shows that she was neither in possession nor was there any interference with possession. Viewed from this perspective it is clear that respondent is not entitled to a decree.
25. The obvious lacunae in the plaintiff's case have been pointed out above. The plaintiff has not deposited the amount that she should have deposited as per Ex-A7 before filing the suit for specific performance. The defendant had raised the plea that the deposit was not made and it would show the plaintiff's lack of bona fides. In spite of that the plaintiff not only does not deposit the amount before filing the suit, but P.W.1, the plaintiff's husband glibly says in his evidence that he has deposited the amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit the plaintiff cannot be content with citing the explanation to Section 16(c) of the Act without proving his readiness and willingness clearly and beyond doubt.
26. The plaintiff has not withdrawn the cases that he had agreed in Ex-A7 to withdraw. The recitals in Ex-A7 that she was put in possession have been found to be false. The case of trespass on 25-04-1982 is also false. The presence of second defendant at the time of Ex-A7 did not find acceptance. It is true that not all false statements dis-entitle the suitor who comes to Court for specific performance, but in this case, the variance from truth is not negligible and on several material particulars the plaintiff's case has been found to be false.
27. For the above said reasons we set aside the judgment and decree of the learned Single Judge and restore the judgment of the learned District Judge. The letters patent appeal is allowed. No costs.