JUDGMENT
P. Jyothimani, J.
1. The plaintiff in the Court below is the appellant. The suit filed by the plaintiff for specific performance directing defendants 2 to 5 to execute and register sale deed in favour of the plaintiff in respect of the property comprised in old No. 3 new No. 14 Krishnadass third street, Mangalapuri, Perambur Barak Road, Madras-12 after receiving the balance sale consideration of Rs. 30,300/- and for a permanent injunction against defendants 2 to 5 from dealing with the suit property either by sale, lease, mortgage or creating lien, etc.
2. The case of the plaintiff is that the first defendant has approached the plaintiff in March 1986 stating that he is the owner of the suit property and desire to sell and requested the plaintiff to purchase the same. After deliberation the sale consideration of the suit property was fixed at Rs. 42,000/- to which the plaintiff and the first defendant have agreed in March 1986. It is the further case of the plaintiff that the first defendant required money at various times as advance and an amount of Rs. 3,000/- was paid as advance. When the plaintiff asked for inspection of the property documents the first defendant stated that the same has been given to a third party and the first defendant took the plaintiff along with his friends to the third party who according to the plaintiff has demanded Rs. 1,000/- since the first defendant has failed to execute sale deed in his favour and the plaintiff paid the said amount of Rs. 1,000/- to the third party with the consent of the first defendant and the third party has handed over possession of the sale deed as well as patta in respect of the suit property.
3. In this regard, according to the plaintiff he has incurred Rs. 700/- towards expenses and therefore, totally he has paid Rs. 4,700/- towards advance amount in respect of the sale consideration. According to the plaintiff the first defendant has agreed to execute sale deed and would require the balance amount to be given in the form of demand draft before the Sub Registrar. It was based on the assurance the plaintiff has prepared the sale deed by purchasing non judicial stamp papers on 18.04.1986 to the tune of Rs. 5,460/-. According to the plaintiff, he has been always ready and willing to perform his part of obligation. However, the first defendant has with an ulterior motive started evading execution and registration of sale deed. The plaintiff had the document in his custody, which was received from the third party at the instance of the first defendant. The plaintiff has issued a notice on 26.05.1986 acknowledged by the first defendant on 28.05.1986. In these circumstances, the present suit was filed on 04.09.1986. It also remains a fact that the plaintiff has not deposited the balance sale consideration while filing the suit.
4. The first defendant has filed the written statement. According to the first defendant, he is a old person aged 74 years without knowing to read and write English and with a little knowledge in Tamil for reading and writing purposes. The first defendant would state that the plaintiff is a stranger. According to the first defendant, the plaintiff has offered a net price of Rs. 1,25,000/- for the property and no amount was received as advance much less Rs. 4,500/- as stated in the plaint. There was no agreement to sell the property at all and there was no concluded contract. The title deeds in respect of the property was with a third party entrusted to him out of confidence and ignorance. The first defendant has never consented for payment of Rs. 1,000/- to third party. The purchase of non judicial stamp paper is not at the instance of the first defendant, since there was no agreement entered at all. According to the first defendant, the plaintiff is a greedy person with an intention of knocking away the property which is valuable, for a paltry amount. There was no written agreement and no amount of advance was paid at any time. It is the further case of the first defendant that the property which is worth more than Rs. 1.50 lakhs, has not been agreed to be sold for Rs. 42,000/- to the plaintiff at all. According to the first defendant, the suit is not maintainable. Admittedly, the plaintiff is not given possession of the property and therefore, the claim of specific performance without relief for possession is not valid in law. The first defendant is entitled to the return of the original documents which have been unauthorizely received by the plaintiff. The defendant 1,2 and 3 are the three wives of the first defendant and the 4th defendant is the daughter born to the first defendant through the 3rddefendant namely the third wife.
5. With the above pleadings the parties went to Trial. The Trial Court has framed the various issues including, as to whether it is true that there was an oral agreement between the plaintiff and the first defendant for the sale of the suit property?
as to whether the first defendant has received Rs. 4,700/- from the plaintiff towards the part of sale consideration?
as to whether the suit is maintainable?
and as to whether the plaintiff is entitled for relief of specific performance and injunction?
The Trial Court having found that the oral agreement stated to have been entered between the plaintiff and the first defendant has not been proved and also relying upon the contradiction in pleadings as well as the evidence of the plaintiff in respect of the payment of advance amount of Rs. 3,000/- and the plaintiff having stated that one Lakshmanan was aware of the oral agreement has not chosen to state the same in the pleading and also having found that the plaintiff who has chosen to state in the evidence that the documents in respect of the suit property were received from one Venkatesan has not chosen to mention about his name in the pleading except stating the third party and also deciding that there is no evidence to prove that the plaintiff has paid Rs. 1,000/- to Venkatesan and also having found that P.W.2 Lakshmanan has given a contrary evidence stating that the first defendant has agreed to sell the suit property for Rs. 32,000/- while the case of the plaintiff himself is that the sale consideration was agreed at Rs. 42,000/- and also having found that in the evidence stated that the advance amount of Rs. 3,000/- was paid in the presence the Lakshmanan P.W.2, however that was not the case at the earliest point of time in the notice issued by the plaintiff to the defendant under Ex.A.13 and also on the basis that the plaintiff having stated that he has purchased non judicial stamp papers and also prepared the sale deed has not filed the same, along with the plaint has come to a conclusion that there was no oral agreement of sale between the plaintiff and the first defendant and in view of the same dismissed the suit. It was as against the said judgement the plaintiff has filed the present first appeal. Pending suit the defendant died and defendants 2 to 5 were impleaded as parties, pending appeal before this Court respondents 4 and 5 who were the defendants 4 and 5 in the suit have sold the property to 6thand 7threspondents who were impleaded as parties. It is also stated that the 6thand 7threspondents who were impleaded have also sold a portion of the property to the 8threspondent who is also impleaded.
6. The learned Counsel for the appellant would submit that on the facts and circumstances of the case that the original documents in respect of the suit property have been in the custody of the plaintiff and the same were produced before the court, namely, the sale deed standing in the name of the first defendant dated 25.08.1949 marked as Ex.A.6 and the patta dated 17.08.1979 marked as Ex.A.12 and also the production of various other documents in respect of the property at the time of evidence by the plaintiff marked as Ex.A.1 to A.5 show that in part performance of the agreement to sell, the first defendant has handed over the said documents to the plaintiff and therefore, based on the evidence of P.W.2 Lakshmanan who has confirmed the oral agreement between the plaintiff and the first defendant entered in 1986 and it should raise a presumption that there was a oral agreement in existence and to substantiate his contention, he would also rely upon the judgment of the Kerala High Court reported in AIR 1988 Kerala 107.
7. On the other hand, it is the contention of the learned Counsel for the respondents 3 to 7 that there is a clear contradiction of evidence of the plaintiff as well as the pleading even in respect of the payment of advance amount apart from the fact that about the third party there was no reference about the name of the third party at all in the plaint except stating that it is a third party and not naming the person. It is also his contention that even the plaintiff as P.W.1 has not given the name of the third party while it is P.W.2 who has stated the name of the third party as Venkatesan. He would also submit that merely holding documents in respect of the property will not presume the existence of a contract and relying upon Section 53(A) of Transfer of Property Act, that only in furtherance of the oral agreement, possession has been parted with there can be a presumption. According to the learned Counsel for the respondents, the Trial Court has given a clear reasoning. He would also submit that P.W.1 and P.W.2 in respect of the sale consideration have given different amounts and therefore, the reasons given by the Court below cannot be treated as a wrong and in the absence any concluded contract there is no possibility of any specific performance.
8. Considering the above said contentions raised by the learned Counsel for the appellant as well as the respondents and also after referring to the judgement of the Trial Court apart from various documents and pleadings, the point that arises for consideration in this first appeal is as to whether the plaintiff is entitled for a decree for specific performance on the basis of a oral agreement stated to have been entered in 1986 and the reasoning given by the Trial Court in dismissing the suit are wrong and deserve to be interfered?
9. This is the case of a suit for specific performance based on a oral agreement stated to have been entered between the plaintiff and the first defendant during March 1986. It is seen that in the written statement the first defendant has totally denied the existence of such oral agreement, apart from denying the receipt of any advance amount and in the absence of any receipts for the advance amount stated to have been paid by the plaintiffs to the first defendant the onus of proving the existence of oral agreement is heavily on the plaintiff. One of the main contentions raised on behalf of the plaintiff is that it was pursuant to the oral agreement for sale the plaintiff has received the original documents in respect of the suit property marked as Ex.A.6 and A.12 from the third party to whom the first defendant has entrusted the document and the plaintiff went to the third party along with the first defendant and another friend and at the request of the third party paid Rs. 1,000/- and got the said documents from the third party.
10. At the outset as right pointed by the learned Counsel for the respondent, mere possession of document in respect of the suit property by a party does not enable him to claim right of specific performance on the basis of the possession of the said documents. In fact Section 53(A) of the Transfer of Property Act, while speaking about the part performance of contract apart from the fact that it relates to a contract of transfer entered in writing and signed by the parties, it shows that the intention to transfer the property can be ascertained as a part performance if a transferee has taken possession of the property or any part there off or if he is already in possession, continuous to be in possession in part performance of contract. Admittedly, in this case the possession of the property is not with the plaintiff.
11. Under Section 16(c) of the Specific Relief Act, the party who seeks a relief of specific performance must aver and prove that he has performed his part of obligation and or has always been ready and willing to perform the terms of contract. It is true as contented by the learned Counsel for the appellant that while enforcing specific performance it is not as if the agreement should be always in writing and there can be oral agreement also and to prove the oral agreement, oral evidence cannot be denied. In Krishnan, Kesavan and Ors. v. Kochukunju Karunakaran reported in AIR 1988 Kerala 187, it was held by the Kerala High Court that it is not as if the oral agreement is prohibited. The operative portion of the judgement as follows:
An oral agreement is not something prohibited by law. No rule of law says that relief cannot be granted when the agreement and evidence supporting it are only oral and no documents are there to support. Oral agreements can be enforced by courts provided the evidence is sufficient to satisfy the conscience of the court. Both the courts below evaluated the pleadings and evidence carefully and found the issue in favour of the plaintiff.
12. But it remains a fact that as per the Specific relief Act, the readiness and willingness of the party to perform the contract must be avered and proved. Even as per Section 7 of the Indian Contract Act, which states
7. In order to convert a proposal into a promise, the acceptance must –
(1) be absolute unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer, may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance.
That to convert a proposal into that of a promise, acceptance must be absolute and unqualified. Therefore, in deciding whether a contract is concluded, the essential fact to be decided is about the contents of a document or based on the evidence on the point. In the absence of a written agreement, the responsibility of the plaintiff to prove cogently about the existence of such oral agreement and to plead and prove the essential factors relating to oral agreement is onerous. While taking these aspect into consideration, a reference to the pleading shows that the plaintiff has not chosen to state anything in the plaint that at the time when the oral agreement was stated to have been entered between him and the first defendant in March 1986 one Lakshmanan who was examined as P.W.2 was present. Even in respect of the alleged payment of Rs. 1,800/- to a third party for the purpose of receiving the original documents in respect of the suit property, the plaintiff apart from not mentioning the name of the third party, even has not chosen to state about the name of P.W.2 as a common friend who accompanied, him along with the first defendant for receipt of the documents. That apart even at the earliest point of time when the suit notice was given by the plaintiff on 26.05.1986 marked as Ex.A.13, the plaintiff has not chosen to disclose the name of P.W.2 as common friend accompanied him apart from not disclosing the name of the third person. It is in his evidence as P.W.1 he states that mentioning of the presence of Lakshmanan (P.W.2) to prove the oral agreement is not necessary. However he would state that the advance amount itself was paid in the presence of Lakshmanan as follows:
13. It is also interesting to note that the plaintiff who has chosen in the plaint to state that after paying Rs. 1,000/- to a third party he has received the parent document, while giving evidence as P.W.1 has stated that Ex.A.2, A.3, A.4 and A.5 documents were received by him from the first defendant which is admittedly not in the pleading. Therefore, it is clear that the plaintiff has not come to the court with correct particulars to prove the oral agreement stated to have been entered by him with the first defendant. This is the finding given by the Trial Court also which is certainly based on sound reasoning. Now coming to the further statement of the plaintiff about the mode of payment of advance, it is seen in the plaint and it is the specific case of the plaintiff that in respect of the advance amount of A Rs. 3,000/- the same was paid to the first defendant in small amounts on various occasions. The pleading in this regard as follows:
The plaintiff states that on various occasion the first defendant required money and the plaintiff has been paying the amount to the first defendant as advance whenever the first defendant wanted money plaintiff paid Rs. 3,000/- as advance.
14. On the other hand, the plaintiff as P.W.1 would state as if Rs. 3,000/- was paid by him on 25.03.1986 as advance, which is as follows:
15. In fact in the cross examination he has specifically stated as follows:
16. Even in respect of the receipt of the other parent documents other than Ex.A.6 and A.12 it is not in the pleading by the plaintiff that the same were handed over by the first defendant. Except stating that the said two documents were handed over by a third party on his payment of Rs. 1,000/- in the presence of the first defendant and common friend there is no whisper about the other documents at all. However, in the evidence he has chosen to state that the said documents were received by him from the first defendant as follows:
17. On the other hand even though the first defendant in the written statement has stated that the title deeds of the property were withheld by a third party with whom it was entrusted out of confidence and ignorance and the first defendant has clearly stated that there was no concluded contract between him and the plaintiff and he has also chosen to state that any amount stated to have been paid to the third party is without concurrence of the first defendant. But on the other hand, the 4thdefendant who is the third wife of the first defendant who has given evidence on behalf of the defendant after the death of the first defendant would state that while working in Tea shop the plaintiff took the documents from her husband and the husband has stated that without his intention the documents were taken from the first defendant by the plaintiff in her cross examination. The relevant portion of the evidence as follows:
18. This itself cannot be taken as positive proof of the claim of the plaintiff about the existence of a oral agreement between him and the first defendant. It is also further relevant to point out, as pointed out by the learned Trial Judge that the plaintiff who has chosen to state that the amount of consideration based on the oral agreement in respect of the property as Rs. 42,000/- and also given evidence as P.W.1 in that way, but on the other hand, P.W.2 who is stated to be a common friend present and examined for proving the oral agreement has chosen to state that the sale consideration agreed was Rs. 32,000/-. This is certainly a vital piece of evidence on the side of the plaintiff to disprove the claim of the plaintiff that there was a oral agreement entered between the plaintiff and the first defendant.
19. In these circumstances, a close analysis of the entire judgement by the Trial Court shows that the Trial Court has arrived at a correct conclusion based on the appreciation of evidence in a most reasonable manner and there is absolutely nothing to infer that the judgement of the Trial Court is either perverse or wrong.
20. In view of the above said situation/ I have no hesitation to come to the conclusion that the plaintiff has failed to prove the oral agreement between him and the first defendant and the judgement and decree of the Trial Court does not suffer from illegality. In view of the same the Appeal fails and the same is dismissed and the judgement and decree of the Trial Court in O.S.No. 6227 of 1986 dated 07.04.1992 is confirmed with cost.