IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07..10.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.932 of 1991 Vasantha Ammal .. Appellant vs. 1. Babu Chettiar (died) 2. Krishnaveni Ammal (died) 3. P.Manicka Vasagam (Died) 4. A.Ramalingam (Died) 5. Esther 6. M.Edwin 7. M.Prabhu 8. Padma 9. R.Sekar R4 impleaded as party respondent vide order of Court dated 12.01.1994 made in C.M.P.No.11919 of 1994 RR5 to 7 brought on record as LRs of the deceased third respondent vide order of Court dated 24.03.2007 made in C.M.P. Nos.10908 to 10910 of 2006. RR8 and 9 brought on record as LRs of the deceased 4th respondent vide order of Court dated 11.04.2007 made in C.M.P.Nos. 175 to 177 of 2007 10. J.Mohan 11. J.Murali 12. J.Kothandaraman 13. J.Santhanam 14. D.Rani 15. L.Sekar 16. L.Sivakumar 17. K.Rani 18. M.Sudaamani 19. R.Lakshmi 20. R.Suresh Kumar 21. R.Gopinath 22. V.Hari Babu 23. V.Dhanapal 24. V.Vasudevan 25. V.Vijayakumar 26. B.Kasthuri 27. V.Vijayalakshmi 28. N.Vasanthi 29. V.Geetha 30. M.Chamundeswari 31. T.Thulasi 32. K.S.Sekar 33. S.Sreenivasan 34. K.Radha Bai 35. A.Rukmani 36. G.Hemalatha 37. D.Balakrishnan .. Respondents RR 10 to 37 impleaded as party respondents vide order of Court dated 11.08.2008 made in C.M.P.No.1152 of 2006. Appeal preferred against the judgment and decree dated 02.08.1992 passed in O.S.No.20 of 1982 by the learned I Additional Subordinate Judge, Chengalpattu. For Appellant : Mr.P.Gopalan For Respondents : Mr.Seshadri For RR9 & 10 : Mr.V.Bhiman JUDGMENT
Anim adverting upon the judgement and decree dated 02.08.1992 in O.S.No.20 of 1982, which is one for specific performance, dismissed by the learned I Additional Subordinate Court, this appeal is focussed. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court.
2. The whole kit and caboodle of facts and figures placed before the trial court warrants this Court to scan and scrutinize the records and infer and understand the case of both sides for being quintessentially and briefly portrayed the germane facts thus:
Niggard and bereft of details, the case of the plaintiffs would be as under:
a) The suit properties, viz., a house and nanja lands belonged to the defendants 1 and 2. The plaintiff and the defendants entered into an agreement to sell on 09.07.1979 whereby the latter agreed to sell the same in favour of the former for a total sale consideration of Rs.41,000/- and out of it, a sum of Rs.24,500/- was paid by the proposed purchaser in favour of the owners of the properties as advance and the remaining was undertaken by her to be paid to the other side on or before 11.10.1979, intending that time should be the essence of contract.
b) Despite the plaintiff having been ready and willing to perform her part of the contract by paying the remaining part of the sale consideration and getting executed in her favour, the sale nonetheless, the defendants had an volte face and procrastinated their performance. However, the said owners all of a sudden sold the agricultural items of the suit properties in favour of D3, even though the fact remains that the plaintiff under the said agreement to sell had been put in possession of the house property and consequently, she and her family members have been residing there, in addition to the landed properties also having been put in possession of the plaintiff and she having raised crops. Nevertheless, the third defendant was attempting to take forcibly and illegally the possession of the suit property.
c) The plaintiff’s lawyer’s notice dated 02.02.1982 to defendants 1 to 3 evoked no positive response from them, but to the shock and surprise of the plaintiff, defendants 1 and 2 sent reply denying in toto the very execution of the agreement to sell itself. D3 also sent a similar reply, in addition to claiming that he was the bona fide purchaser of the landed properties. D3 is not a bona fide purchaser, without having knowledge about the pre-existing suit agreement to sell.
d) Hence, the suit for specific performance.
3. Remonstrating and denying, gainsaying and impugning the allegations/averments in the plaint, D1 filed the written statement, which was adopted by D2, the gist and kernel of them would run thus:
a) The suit agreement to sell was not executed by the defendants 1 and 2. One K.N.Subramanian approached the defendants 1 and 2 during April 1979 and evinced and expressed his desire to purchase the suit properties; after due negotiations the house property and 2 acres and 54 cents of land alone were agreed to be sold; whereupon at the request of the said Subramanian, the agreement to sell emerged on 19.04.1979 in the name of one Muthusamy Iyer and D1 and D2, Muthusamy Iyer did not approach the defendants personally stipulating three months’ period as the time for performance, apparently indicating that the time was the essence of the contract. Under the said agreement to sell, a sum of Rs.20,000/- was paid as advance by Subramaniam in favour of D1 and D2 and he undertook to pay the balance, at the time of registration of the sale deed.
b) However, when the time stipulated therein was about to expire, the said Subramaniam approached the defendants on 09.07.1979 and requested for extending the time for performance by three more months for which, the defendants 1 and 2 were not willing. Whereupon the said Subramaniam paid a sum of Rs.4,500/- and requested defendants 1 and 2 to execute another agreement to sell and as a token of it, the said Subramaniam got the signatures of D1 and D2 on stamp papers and it was agreed between them that on or before 09.10.1979, the sale deed should be got executed from the defendants, after payment of the remaining sale consideration. As such, there was no privity of contract between the plaintiff and the defendants 1 and 2. The possession of the suit properties was not handed over either to the plaintiff or to Subramaniam. Subsequently, no steps were taken by Subramaniam to get the sale deed executed by D1 and D2.
c) At no point of time, the plaintiff approached the defendants 1 and 2 for getting the sale executed by them after paying the remaining sale consideration. In fact, Subramaniam himself expressed his inability to get the transaction completed and thereupon, he abandoned his right under the said agreement. It is the said Subramaniam, who instigated the plaintiff to file the suit.
d) The agricultural land are in occupation of the tenants of D1 and D2 and they are cultivating it, after executing muchalikas in favour of D1 and D2 and they were paying rents to D1 and D2. In respect of the house property, an agreement to sell emerged between D1 and D3 on 14.12.1981. D3 by way of part performance was put in possession of the suit house. However, the plaintiffs and her sons illegally trespassed and occupied the verandah of the suit house.
Accordingly, they prayed for the dismissal of the suit.
4. The warp and woof of the averments in the written statement filed by D3 would run thus:
D3 purchased the items 1 to 8 landed properties from D1 and D2 as per the registered sale deed dated 14.12.1981 and he was put in possession of the same and the tenants under D1 and D2 relating to the landed properties attorned the tenancy in favour of D3. The plaintiff is not in possession of the landed properties. Under the agreement to sell in respect of the suit house properties, D3 was put in possession by way of part performance by D1 and D2. After filing of the suit, the said agreement to sell relating to the house was cancelled, at the instance of D3.
Accordingly, he prayed for dismissal of the suit.
5. The trial Court framed the relevant issues. During the trial, the plaintiff examined herself as P.W1 along with P.Ws.2 to 4 and Exs.A1 to A8 were marked. On the side of the defendants’ DW1 was examined along with D.Ws.2 to 4 and Exs.B1 to B42 were marked.
6. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiff has filed this appeal on the following grounds among others, the warp and woof of them would run thus:
(i) Ignoring the clinching evidence available in favour of the plaintiff, the trial Court dismissed the suit.
(ii) The trial Court failed to hold that the plaintiff was in possession of the suit properties pursuant to the agreement to sell.
(iii) The trial Judge wrongly construed Ex.A5 and Ex.A6.
(iv) If really, the plaintiff was not in possession of the suit properties, the defendants would have denied her possession over the suit properties in their notice.
(v) The preponderance of probabilities would warrant to infer that after paying a huge sum of Rs.24,500/-, the plaintiff would have taken possession of the suit properties but it was not considered by the trial Court.
(vi) The admission made by DW1 was ignored and DW1 could not furnish any particulars about the details of possession by D.Ws. 2 and 3, but the trial Court failed to note it.
(vii) The deposition of DW2 relating to Muchalika was not properly construed by the trial Court.
(viii) The trial Court failed to note that no evidence was adduced by the defendants relating to the alleged trespass made by the plaintiff.
(x) The trial Court failed to hold that D3 was not the bona fide purchaser of the suit properties 1 to 8.
(xi) DW4’s (D3) evidence was not properly considered by the trial Court.
(xii) The trial Court did not consider the admission made by DW4 (D3) in deciding the case.
Accordingly, she prayed for setting aside the judgment and decree of the trial Court and for decreeing the suit.
7. The points for consideration are as to :-
(1) Whether the suit agreement to sell Ex.A1 emerged between the plaintiff and D1 and D2 intending the plaintiff as the proposed purchaser and if so, whether the plaintiff was put in possession of the suit properties by way of part performance?
(2) Whether the plaintiff was ready and willing to perform her part of the contract or whether the defendants 1 and 2 committed breach of contract and sold the properties in item Nos. 1 to 8 in favour of D3 illegally?
(3) Whether D3 is a bona fide purchaser without notice of the suit agreement?
(4) Whether there is any infirmity in the judgment and decree of the trial Court?
8. Heard both sides.
9. Discussion on the facts and events emerged during the pendency of the appellate proceedings:
(i) Discussion relating to missing records:
A ‘resume’ of facts and events which emerged during the pendency of the proceedings is absolutely necessary to be portrayed as under:
10. The plaintiff filed the suit for specific performance of the agreement to sell which was dismissed, whereupon, the plaintiff filed the necessary application seeking permission of this Court to file the appeal Informa Pauperis, but such a prayer was rejected, thereupon, LPA was filed and ultimately, the plaintiff was permitted to file the appeal Informa Pauperis.
11. Mr.Seshadri, the learned counsel for the respondents 10 to 37 herein and Mr.Gopalan, the learned counsel for the appellant/plaintiff would submit that pending LPA, it so happened that the trial court destroyed the records due to lapse of time. It appears, from the certified copies available the typed set of papers were prepared. From the endorsements found in the Court records, what I could understand is that this Court has sent communication to the lower Court to send the material records in O.S.No.20 of 1982, whereupon, the original plaint, written statements, fair judgement and decree were sent to this Court, but, the rest of the material papers including the documents have not been sent to this Court, as they were destroyed as per Rules. It is a well known procedure that if original records are not available, from the papers and materials available based on the concept “reconstruction of records”, justice should be rendered. Hence, realising the situation, all the learned advocate appearing before me, have submitted their arguments as such referring to the available records as reconstructed ones. The certified copies of depositions of the witnesses have also been furnished to this Court for reference, by the plaintiff.
(ii) Discussion on impleadment of legal representatives of deceased D1 and D2:
12. The learned counsel for the plaintiff Mr.Gopalan would submit that time was not the essence of contract, as Ex.A1 the agreement to sell dated 09.07.1979 is relating to immovable properties i.e. house property and agricultural properties; even though the plaintiff was ready and willing to perform her part of the contract, nevertheless the deceased defendants 1 and 2 were not willing to perform their part of contract and they unilaterally sold the suit items 1 to 8-the agricultural lands to D3 even before filing of the suit, and thereby mangled Ex.A1,the agreement to sell; D3 is not a bona fide purchaser for value without notice of the agreement to sell; once sale was effected by D1 and D2 in favour of D3, the question of D1 and D2 pleading lack of readiness and willingness on the part of the plaintiff would not arise at all; the burden of proof is on D3 to establish that he was a bona fide purchaser for value without notice; and as such, the lower Court judgement has to be set aside and the suit for specific performance has to be decreed.
13. The gist and kernel of the argument of Mr.P.Seshadri, the learned counsel for the respondents 10 to 37 is that D1 and D2 died during the pendency of the proceedings, but no steps have been taken to implead their legal representatives; accordingly the appeal should be taken to have got abated within the meaning of Order 22 Rule 4 of the Code of Civil Procedure and no steps have also been taken to invoke Order 22 Rule 4(a) of the Code of Civil Procedure which contemplates the procedures when there is no legal representatives; and the respondents 10 to 37 are the legal representatives/legal heirs/and they are the beneficiaries under the Registered Will dated 9th September 1997 bequeathing the suit house. Merely because they voluntarily got themselves impleaded as R10 to R37, the appeal which automatically got abated would not be taken as one surviving as on date.
14. The learned counsel for the plaintiff would contend that the respondents 10 to 37 who have come on record are the legal heirs/legal representatives of the deceased D1 and D2 and in such a case, the question of abatement of the appeal would not arise and that earlier the plaintiff was unaware as to who were all the legal representatives/legal heirs of deceased D1 and D2.
15. The learned counsel for R10 to R37 would invite the attention of this Court to the deposition of P.W.1-the plaintiff and develop his argument that even during cross-examination the plaintiff admitted about the existence of the sister of D1. It is also a fact that D.W.1(D1) during his life time in the chief examination itself categorically deposed in his very second sentence that he was having three sisters. Even P.W.4 Subramanian, who apparently brought about the transaction was also aware of the L.R. of D1. It is therefore clear that the plaintiff herself could have taken steps to implead the LRs of D1 and D2 on the death of D1 and D2 had she taken diligent steps. But she has not done so. On the other hand D1 and D2’s legal representatives/legal heirs, who are also beneficiaries as per the Will executed by D1 entered appearance vide order dated 11.8.2008 made in C.M.P.No.1152 of 2008. The plaintiff got it recorded by this Court that the Will dated 19.9.1997 as relied on by R10 to R37, was considered for allowing the application subject to proof of the same.
16. During arguments, the learned counsel for R10 to R37 would convincingly submit that the plaintiff is only a 3rd party to the family of D1 and D2 and in such a case she cannot dispute the Will as per the settled proposition of law and in as such the registered Will could be marked straight away and taken on evidences.
17. The learned counsel for the plaintiff could not put forth any other proposition of law contrary to what the one which was suggested by R10 to R37, relating to the said marking of the Will. At the appeal stage the original Will itself has been filed. I am fully aware of the fact that as per Order 41 Rule 28 C.P.C. this Court could take additional evidence or send it to the lower Court for marking documents and taking additional evidence. But both the sides have not requested this Court to adhere to such a procedure and they would submit that the plaintiff is interested in enforcing her right and R10 and R37-the legal representatives of the deceased, are interested in resisting the claim of the plaintiff. Hence, in such a case, inasmuch as the Will happened to be the registered Will and the plaintiff was not as heir apparently or inheritor of D1 and D2, I am of the opinion that straight away that could be marked as Ex.B43 as already Ex.B1 to Ex.B42 documents were marked on the defendants’ side.
18. In stricto sensu if the matter is viewed, as per the Will, D1 bequeathed only the house. But here the suit items 1 to 8 also are involved; however But D1 and D2 during their life time itself sold those suit items 1 to 8 to D3 and hence those items are not figuring in Ex.B43-Will. But the fact remains that R10 to R37 are the legal heirs/legal representatives of the deceased D1 and D2 apart from they happened to be the beneficiary under the Will. The learned counsel Mr.Seshadri for R10 to R37 would submit that the plaintiff did not take steps to file necessary affidavits to get set aside the abatement of appeal after getting the delay condoned in taking such steps. In my considered opinion such a procedure would be merely ritualistic so far this appeal is concerned as R10 to R37 of their own accord have come on record. The appellant/plaintiff and the defendants/respondents cannot blow hot and cold as it is primarily the duty of the plaintiff to implead the Legal Representatives of D1 and D2. When R10 to R37 entered appearance as the legal representatives/legal heirs/beneficiaries under the Will of D1, their presence could rightly be taken as the presence of legal representatives/legal heirs of D1 and D2 in the entire appeal and neither of the parties could be heard to raise any plea touching upon the status of R10 to R37 as the legal representatives/legal heirs of D1 and D2 relating to all the points involved in this appeal. Accordingly, learned counsel for R10 to R37 advanced his argument relating to items 1 to 8 and 9 of the suit properties. In this singularly singular factual matrix the punctilios of procedures cannot be pressed into service to thwart even handed justice based on a posteriori approach instead of a priori one. With this finding I would like to lay down as a general proposition of law that in order to surmount a legal obstacle a litigant cannot put forth a point as against the opponent and in another breath in order to take advantage of another legal proposition in his support cannot take an antithetical stand to the one already taken in one and the same proceedings. Antithetical legal stands and legal status simultaneously cannot co-exist in a legal proceeding. Now then the plaintiff and the legal representatives of D1 and D2 are before this Court and in such a case there is no impediment for deciding the matter on merits de hors the technical arguements advanced on either side. As such I proceed further to discuss on the merits of the case.
19. Points (i) & (ii): Discussion on merits of the case based on evidence.
The learned counsel for the plaintiff would argue that defendants 1 and 2 were deliberately false in denying the very genuineness of Ex.A1 as there is overwhelming evidence to demonstrate that D1 and D2 executed Ex.A1-the agreement to sell consciously. Inviting the attention of this Court to the deposition of deceased D1-Babu Chettiar as D.W.1, the learned counsel for the plaintiff would appositely develop his argument that D.W.1 himself during cross-examination candidly and categorically, supinely and pellucidly admitted about the execution of Ex.A1-the agreement to sell. Even in the written statement D1 and D2 were vague relating to their stand as to Ex.A1. An excerpt from paragraph 4 of the written statement of D.W.1 would run thus:
“4. . . . . Subsequently when the time under the agreement is about the expire Subramania, came on 9.7.1979 and wanted defendants 1 and 2 to extent the time for completing the transaction by another three months for which defendants 1 and 2 were not willing. But Subramaniam made a further payment of Rs.4500/- and wanted defendants 1 and 2 to execute another agreement. It was not even then mentioned in whose favour such an agreement was to be taken. On receipt of this Rs.4500/- defendants 1 and 2 signed on stamp papers which was represented to be an agreement to sell. . . . . . . . . . . . . .”(emphasis supplied)
20. Not to put too fine a point on it, a cumulative reading of the stand of defendants 1 and 2 in the written statement, and in the deposition of D.W.1(P1) would make the point amply clear that defendants 1 and 2 by signing Ex.A1 as an agreement to sell had knowledge that they were signing an agreement to sell. However, the crux of the matter is to find out as to whether there had been actual consensus ad idem between the plaintiff on the one side and D1 and D2 on the other side relating to Ex.A1.
21. Put simply, there is considerable force in the submission made by the learned counsel for R10 to R37 that it was P.W.4, who was playing active role in bringing about the agreements to sell Ex.B1 and Ex.A1 and that the plaintiff is none but a name lender. At this juncture it is worthwhile to refer to Ex.B1. No doubt the learned counsel for R10 to R37 would submit that Ex.B1 dated 19.4.1979 is the first agreement to sell, which emerged between D1 and D2 on the one side and one Muthusamy Iyer on the other side and it was cancelled as found detailed in the written statement as well as in the deposition of D.W.4 and thereafter alone Ex.A1 emerged.
22. Both sides in unison would admit about the genuineness of Ex.B1, even though the said document is not available here in view of the fact, as found out supra, that it was destroyed as per Rules by the lower Court.
23. Relating to Ex.B1, P.W.4 Subramanian would candidly and narratively depose that Ex.B1 emerged between D1 and D2 on the one side and Muthusamy Iyer on the other side, whereby Muthusamy Iyer agreed to purchase the suit properties for a total sale consideration of Rs.41,000/-; out of that amount, Rs.24,500/- was paid by him to D1 and D2; subsequently it was cancelled and Ex.A1 emerged between D1 and D2 on the one side and the plaintiff on the other side; and the plaintiff happened to be the servant working under Muthusamy Iyer. Relating to the advance amount of Rs.24,500/- Subramanian would submit that after the death of Muthusamy Iyer the said advance amount was returned to P.W.4 and he gave back that Rs.24,500/- to D1 and D2 as advance under Ex.A1. It is therefore crystal clear that the real moving spirit in bringing about the transaction is only Subramanian. There is nothing to indicate that the advance amount of Rs.24,500/- was paid by the plaintiff to D1 and D2. However, the plaintiff in her deposition would try to project a case as though while she was working under the said deceased Muthusamy Iyer a sum of Rs.15,000/- was entrusted to Muthusamy Iyer by her she would depose that she also raised money by pledging her jewels and brass items and by borrowing money from her daughter towards such payment of advance and it is also her case that for raising money to pay the remaining part of the sale consideration her daughter sold her land in Padapai and gave the sale proceeds to her.
24. If the evidence of P.W.1 and P.W.4 are cumulatively viewed they do not hang together. Their evidence are evincing only recondite and uncanny situation.
25. P.W.4’s categorical projection of the case is that it was Muthusamy, who for and on behalf of the plaintiff only, entered into such an agreement to sell. An excerpt from the deposition of P.W.4 would run thus:-
VERNACULAR (TAMIL) RECORDS DELETED
26. A bare perusal of the above excerpt would amply make the point clear that the case as projected by P.W.4 do not tally with the case as put forth by P.W.1, as P.W.1’s deposition would not reveal and exemplify, indicate and delineate that the first agreement Ex.B1 was contracted by Muthusamy with the defendants 1 and 2 for and on behalf of P.W.1. The plaint averments concerning The source of money to constitute the sum of Rs.24,500/- and also the additional sum of Rs.4,500/- which was claimed to have been paid at the time of the emergence of Ex.A1 do not fit in with the deposition of P.W.4. An excerpt from the deposition of P.W.1 would run thus:-
VERNACULAR (TAMIL) RECORDS DELETED
27. It is also not clear as to whether the plaintiff gave Rs.24,500/- directly to Muthusamy in various instalments or whether she gave only Rs.15000/- to Muthusamy. But one thing is clear that P.W.1 would depose that she gave additional sum of Rs.4500/- at the time of emergence of Ex.A1, whereas Subramanian does not speak anything about it.
28. Ex.A1 does not refer to any additional payment of Rs.4500/-. However, the above discussions relating to Ex.A1 are purely for the purpose of finding out as to whether actually the plaintiff is the real proposed purchaser at all and whether she had the financial wherewithal to pay the same, even though as already held above Ex.A1 was executed by D1 and D2.
29. It is a trite proposition of law as set out in various precedents that it is the duty of the plaintiff-the proposed purchaser to prove that she has been ready and willing to perform her part of the contract throughout and that she had enough financial ability to pay the sale consideration. Once the defendants have challenged that the plaintiff has not been ready and willing to perform her part of the contract, it is absolutely necessary on the part of the plaintiff to prove her financial ability. But here absolutely there is no iota or exiguous extent of evidence to exemplify that the plaintiff had such financial wherewithal.
30. The learned counsel for R10 to R37 would convincingly and correctly develop his argument that the very fact that the plaintiff could not file the appeal by paying Court fee would speak volumes about the plaintiff’s impecunious and penurious circumstances in her life and that it cannot be taken that she had the financial ability to pay the remaining part of the sale consideration i.e. Rs.18000/-. The learned counsel also would convincingly and cogently argue that even though P.W.1 in her deposition stated that she had Rs.18,000/-in her possession she had not chosen to deposit the same before the trial Court.
31. I am fully aware of the fact that depositing the remaining part of the sale consideration before the lower Court is not a sine qua non for seeking specific performance of the agreement to sell. However the financial ability of the plaintiff cannot be presumed or assumed and that too in the peculiar circumstances of this case when the plaintiff hereself categorically had come forward with the narration in her deposition that she herself was only a maid servant in the house of Muthusamy and her sons were all doing coolie work. It is not her contention that she out of her own effort earned the remaining part of the sale consideration and keeping it in her possession ready so as to fulfil her part of the contract. But on the other had, the plaintiff would depose that her daughter sold her land in Padapai and a sum of Rs.18,000/- out of the sale proceeds was given to her.
32. The learned counsel for R10 to R37 also would convincingly argue that no sale deed allegedly executed by the plaintiff’s daughter has been produced so as to probabalise the contention of the plaintiff that she obtained the sum of Rs.18,000/- from her daughter.
33. At this juncture I recollect the common or garden principle governing the law of pleadings that any amount of evidence without the backing of the pleadings should be eschewed. Here the plaint is niggard and bereft of details relating to her financial ability and also the facts which narrated in her deposition. In fact, the gist and kernal of the deposition of P.W.1 and P.W.4 projects a different case from the one found detailed in the plaint relating to the plaintiff’s financial ability and even the circumstances under which Ex.A1 emerged.
34. To the risk of repetition without being tautalogous or repetitious, I would highlight that all these discussions are centred on the plaintiff’s financial ability to pay even earlier the sum of Rs.24,500/- as advance amount and also her subsequent ability to pay the remaining part of the sale consideration. It is therefore crystal clear that the defendants are right in their contention that in stricto senso the plaintiff is not the real proposed purchaser. When such is the position, the question arises as to whether she is entitled to get specific performance of the agreement to sell enforced.
35. At this juncture it is just and necessary to refer to the precedents cited on both sides:-
(i) The learned counsel for the plaintiff would cite the decision of the Honourable Apex Court reported in 2008(1) CTC 530-BALASAHEB DEYANDEO NAIK [DEAD] THROUGH LRS AND ORS. VS. APPASAHEB DATTATRAYA PAWAR, an excerpt from it would run thus:-
“13. it is true that the defendant in his written statement has made a bald claim that the time was the essence of contract. Even if we accept the recital in the agreement of sale [Ex.18] that the sale deed has to be executed within a period of six months, there is an express provision in the agreement itself that failure to adhere the time, the earnest money will be forfeited. In such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear that time was never intended by the parties to be of essence. The Constitution Bench decision in Chand Rani v. Kamal Rani, 1993 (1) SCC 519. also makes it clear that mere fixation of time within which contract is to be performed does not make the stipulation as to the time as the essence of contract. Further, we have already pointed out that the defendant has not bothered to prove his claim on oath before the Court to the effect that it was the plaintiffs who avoided performing their part of contract. All the above mentioned materials aspect were correctly appreciated by the trial Court and unfortunately the High Court failed to adhere to the well known principles and the conduct of the defendant. When the third plaintiff deposed before the Court explaining their case with reference to the recitals in the agreement of sale including the reference to the legal notice to the defendant, in the absence of contra evidence on the side of the defendant, we are unable to agree with the conclusion arrived at by the High Court in non-suiting the plaintiff. The High Court commented the conduct of the plaintiffs in praying for refund of the earnest money, namely Rs.20,000/-S paid as advance. As rightly pointed out, the claim for refund of earnest money is only their alternative claim. It is not in dispute that in all suits for specific performance, the plaintiff is entitled to seek alternative relief in the event the decree for specific performance cannot be granted for any reason, hence there is no infirmity in the alternative plea of refund.”(emphasis supplied)
(ii) Whereas the learned counsel for R10 to R37 would cite the five Bench decision of the Honourable Apex Court, which is found referred to in the aforesaid decision reported in 2008(1) CTC 530. As such absolutely there could be no doubt about the settled proposition of law that normally time is not the essence of contract relating to agreement to sell immovable properties. An excerpt from the Five Bench decision of the Hon’ble Apex Court reported in 1993(1)SC 519 [Chand Rani (Smt) (Dead) By LRs. v. Kamal Rani (Smt) (dead) By Lrs.] would run thus:
“25. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are :
1. From the express terms of the contract;
2. from the nature of the property; and 3.from the surrounding circumstances, for example: the object of making the contract.
27. Then comes the question as to the payment of Rs.98,000. The question is as to what is the meaning of the words “within a period of 10 days only”? Does it apply to the amount or the time-limit of 10 days from August 26, 1971. The trial court was of the view that the word “only” was meant to stress and qualify the amount of Rs.98,000/- and cannot be read to mean as if payment within 10 days was the essence of the contract. On this aspect, the appellate court takes the contrary view and holds that the amount of Rs.98,000 ought to have been paid on or before September 6, 1971. Failure to do so would constitute a breach committed by the defendant. We are of the considered view that the Division Bench is right in its conclusion. As rightly pointed out in the judgment under appeal, the word “only” has been used twice over
(1) to qualify the amount of Rs.98,000 and
(2) to qualify the period of 10 days.
28. Therefore, having qualified the amount there was no further need to qualify the same unless it be the intention of the parties to make time as the essence of the contract.
29. The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income tax clearance certificate had not been obtained the sum of Rs.98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs.98,000. Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under clause (1) of the suit agreement. From this point of view, we are unable to see how the case in Nathulal could have any application to the facts of this case.
30. The next question is whether the plaintiff was ready and willing? The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. On September 10, 1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from August 26, 1971, the sum of Rs.98,000 was not paid; hence, the sum of Rs.30,000 stood forfeited. The redemption of the mortgage would be done and the income tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs.98,000 which again was reiterated in the notice dated September 16, 1973, nothing would have been easier for the plaintiff than to pay the said sum. Instead of adopting that course what is stated in the notice dated September 24, 1971 by the plaintiff is as follows:
“5. That as per agreement, your clientess has to pay all taxes, rates, municipal taxes up to the date of registration and that the previous and other documents pertaining to the said plot No.30, Block ‘K’, sanctioned plan and completion certificates from Municipal Corporation of Delhi in respect of the superstructure built on the said plot shall be handed over along with the vacant possession of first floor by September 30, 1971.
You know that September 30, 1971 is fast approaching and your clientess is still to comply with these requirements besides mentioned in para Nos.2 and 3 of the agreement.
I, therefore, call upon you to advise your clientess to comply with the requirements well before September 30, 1971 or latest by September 30, 1971 and obtain the further part consideration of Rs.98,000 from the my clientess.”
31. Therefore, even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs.98,000. In this connection, we have already seen the oral evidence. It shows there was no readiness and willingness. We are in agreement with the conclusion of the Division Bench.”(emphasis supplied)
Simply because of such a proposition that time is not the essence of an agreement to sell concerning immovable properties the plaintiff cannot take time ad infinitum or until the hell freezes to perform his/her part of the contract and protract it ad nauseum.
36. I would like to cite the following precedents also:
(i) 2007-2-L.W.481 [M.Meenakshi & Others v. Metadin Agarwal (D) By LRs & others]
“39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the Courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs.Chandnee Vidya Vati Madden v. Dr.C.L.Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted.”
(Emphasis supplied)
(ii) 2007-4-L.W.36 [Janardhanam Prasad v. Ramdas]
“11. The Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
14. …Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.
17. …In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted.”
(Emphasis supplied)
(iii) 2007 (1) CTC 57 [A.Ganapathy v. S.Venkatesan]
“19. In a case of specific performance of a contract, in the judgment reported in Smt.Mayawanti v. Smt.Kaushalya Devi JT 1990 (3) SC 205, the Supreme Court has held as under in paragraphs 8 and 11:
8. ……
“11. …. It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the Court cannot order specific performance….”
(iv) 2003(1) CTC 355 [Arunachala Mudaliar v. Jayalakshmi Ammal and another]
“25. …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.”
(Emphasis supplied)
(v) (2008) 6 MLJ 587 [Periyaya v. M.Rajagopal and another]
“18. In P.V.Joseph’s Son Mathew v. N.Kuruvila’s Son AIR 1987 SC 2328 : 1987 Supp SCC 340, the Apex Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus:
“Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppressions to have an unfair advantage to the plaintiff.”
(Emphasis supplied)
(vi) (2008) 6 MLJ 539 [A.Gunasekaran v. K.Damayanthi]
38. .. The decision in K.S.Vidyanandam v. Vairavan, J.T.1997(2) SC 375 is clearly applicable. Specific performance cannot be ordered merely because they are filed within the period of limitation, especially where time limits have been stipulated in the agreement for performance of certain obligations. To disregard the time stipulation would amount to ignoring the understanding between the parties as though it is of no significance or value.”
(Emphasis supplied)
(vii) 2008(2) CTC 382 [P.Sampoornam and others v. L.T.Somasundaram and others]
“19. … The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. By analysing the matter in issue as referred to above, I am of the opinion that it is doubtful that the defendants would have executed an agreement of sale with an intention to sell the suit property. Further more, there is no reason for execution of Ex.A11 endorsement since it has not been proved that there was a lessee in the suit property. Further more, after the endorsement dated 30.12.1990, the plaintiffs would not have waited till the issuance of notice under Ex.A.2 dated 13.07.1996. The silence for nearly six years by the plaintiffs causes much doubt whether there was a real agreement of sale between the plaintiffs and the defendants. Merely because the defendants have accepted their signatures in the endorsement under Ex.A.11, conclusion could not be reached that the defendants have entered into an agreement of sale with an intention to sell the suit property.”
(viii) 2007(1) CTC 243 [G.Ramalingam v. T.Vijayarangam]
“16. … Even if for a single day, plaintiff-agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continuously from the date of agreement up to the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex.A-3” (Emphasis supplied)
(ix) 2007 (2) L.W.791 [1. Chinnakannu Naidu 2. Saroja v. Chinnappan]
“16. In Sandhyarani v. Sudha Rani, AIR 1978 S.C. 537, it is laid down
“Where there is inordinate delay on the part of the plaintiff to perform his or her part of contract a decree for specific performance can be refused.”
(x) (2006) 2 M.L.J.651 [Yesudass (died) and others v. Henry Victor and others]
“15. The factum of readiness and willingness to perform part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstance. The court must infer from the facts and circumstance whether the plaintiff and third defendant were always ready and willing to perform their part of the contract. The facts of this case would amply demonstrate that the plaintiff and third defendant were not ready nor had the capacity to perform their part of the contract as they have no financial capability to pay the consideration in cash as contracted and intended to bite for the time, which disentitles them as time is the essence of the contract. Continuous readiness and willingness at all stages from the date of agreements till the date of hearing of the suit must be proved.”
(Emphasis supplied)
(xi) 2008(1) CTC 86 [Sita Ram and others vs. Radhey Shyam]
“6. …..He had in that Suit to allege, and if the act was traversed, he was 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. Failure to make good that averment brings with it and leads to the inevitable dismissal of the Suit.”
(Emphasis supplied)
(xii) 2006(4) MLJ 1348 [V.Kanniammal and others v. Anjalakshmiammal (Died) and others]
“28. ….. Therefore, the readiness and willingness pleaded and the attempt made to prove the payment of balance of sale consideration, through P.W.3, fails to satisfy the conscience of the Court and in this view, it should be held that there was slackness on the part of the plaintiff to perform her part of the contract and such being the position, even assuming that there was some contract, the same could not be enforced.”
37. A bare perusal of those excerpts including those judgment in entirety would clearly highlight that the burden of proof is on the plaintiffs to prove that they have been ready and willing to perform their part of the contract throughout and they cannot pick holes in the case of the defendants so as to achieve success in the litigative battle. It is also made clear that the discretional relief of specific performance cannot be granted as a matter of course and that too, when the plaintiffs have not approached the Court with clean hands.
38. Ex.A1 the agreement to sell emerged on 9th July 1979, whereas Ex.A4-the plaintiff’s lawyer’s notice was issued on 2.2.1982 by setting out the plea that time was not the essence of contract and the plaintiff was desiring to pay the remaining part of the sale consideration and get the sale deed executed. Ex.A4 was addressed to defendants 1, 2 and 3.
39. It is obvious from the mere perusal of Ex.A4 that such a notice was issued for the first time after D1 and D2 having sold the items 1 to 8 in favour of D3. What the plaintiff had been doing all along ever since 9th July 1979-the date of emergence of Ex.A1 and the issuance of Ex.A4-notice dated 2.2.1982, is totally not known. The aforesaid decisions would unambiguously highlight and spotlight, posit and lay down that the plaintiff should prove that she has been ready and willing to perform her part of the contract without any latches evern for one day, which means that the plaintiff should be ready and willing to perform her part of the contract throughout ever since the date of execution of the agreement to sell.
40. Under Ex.A1 the time stipulated for performance was only up to 7.10.1979. But Ex.A4 notice itself was sent by the plaintiff only on 2.2.1982 and that itself would speak volumes that the plaintiff was quiescent and inert and she had no financial ability to fulfil her part of the contract by paying the remaining sale consideration and in getting the sale deed executed in her favour. Only after coming to know that D1 and D2 sold items 1 to 8 in favour of D3 on behalf of the plaintiff, such a notice was issued.
41. The core question arises as to whether D1 and D2 were justified in selling the suit property in favour of D3. It is clear that D1 and D2 intended that the proposed purchaser should be diligent in getting the sale deed executed from D1 and D2. P.W.4 Subramanian himself during cross-examination would without mincing words depose that D1 and D2 were insisting for adhering to the time limit. An excerpt from the deposition of P.W.4 would run thus:
VERNACULAR (TAMIL) RECORDS DELETED
42. For clarity sake I would highlight here that my discussion is not relating to the fact as to whether the time was the essence of contract or not, but it is relating to the fact that D1 and D2 made clear that they meant business and not simply dilly-dallying or shilly-shallying with the matter. In that connection alone my discussion proceeds.
43. D1 and D2 in their written statement also threw point- blank on the issue that they wanted not to hum and haw with the transaction of agreement to sell but they wanted the other party i.e. the proposed purchaser to be serious in getting the sale deed executed.
44. As such the evidence of D.W.1 would clearly demonstrate and indicate that D1 and D2 were particular in seeing that the property should be sold promptly by them in favour of a genuine purchaser. As such it is no wonder that D1 and D2 having had bitter experience with Muthusamy who defaulted in getting the sale deed executed from D1 and D2, reluctantly entered into the agreement to sell-Ex.A1 at the request of P.W.4 and that too, as revealed by the deposition of D.W.1 that a sum of Rs.4,500/- was additionally paid to them by P.W.4.
45. My discussion supra is apparent that neither the plaintiff nor Subramanian approached D1 and D2 to pay the remaining part of the sale consideration and get the sale deed executed as per Ex.A1. The bare perusal of the deposition of P.W.4 would not in any way indicate or establish that after emergence of Ex.A1, P.W.4-Subramanian either for himself or on behalf of plaintiff made any attempts to get the sale deed executed in the name of anyone. As such, evidence is missing in that regard. P.W.1 simply in one sentence stated thus:
VERNACULAR (TAMIL) RECORDS DELETED
46. Absolutely there is no miniscule extent of evidence to substantiate the claim of the plaintiff that she has been ready and willing to perform her part of the contract throughout. Mr.Seshadri, the learned counsel for R10 to R37 would clinchingly and convincingly argue that the very fact that soon after the pronouncement of the judgement by the trial Court, the plaintiff approached the High Court to file the appeal informa pauparis would speak volumes that even had the trial Court ordered specific performance, she would not have been able to pay the remaining part of the sale consideration; there is no plausible explanation as to why instead of depositing the remaining part of the sale consideration in the Court she retained it allegedly with herself.
47. The submission made by the learned counsel for R10 to R37 is convincing and acceptable for being held that the plaintiff had no financial wherewithal to purchase the suit properties and that she is not a genuine party to the agreement to sell Ex.A1 at all and as correctly contended by D1 and D2 she was only a name lender.
48. The learned counsel for R10 to R37 would cite the decision of this Court reported in 1997(1) CTC 360-SEENI AMMAL VS. VEERAYEE AMMAL to highlight that under what circumstances time could be treated as essence of the contract and also the point that if the plaintiff is not having the financial wherewithal to deposit the amount, certainly the suit cannot be decreed.
49. Relating to the point as to whether the time is the essence of the contract, already my discussion supra would exemplify that so far this case is concerned time cannot be treated as essence of the contract as there are no special features involved in this case that time should necessary be treated as the essence of the contract. However, it is clear that D1 and D2 were serious in getting the transaction completed by their conduct and the plaintiff was not ready and willing to perform her part of the contract. The decision of this Court cited supra in 1997(1) CTC 360 gains significance in one other aspect relating to payment of sale consideration. In the said decision this Court at paragraph 14 held as under:-
“14. Another important feature in this case is that apart from the fact that the plaintiff was not having any money for completion of the sale, she has not taken any steps atleast to deposit the remaining sale consideration into Court at the time of filing of the suit. A perusal of the records show that only on 6.1.1982 i.e., on the date of judgment of the trial Court, she has deposited the balance of sale consideration in the Court. With regard to the above aspect and in the light of Section 16(c) of Specific Relief Act, 1963, I am justified in holding that the plaintiff has not established her case that she was ready and willing to perform her part of the contract even on the date of the filing of the suit.”(emphasis supplied)
50. The evidence discussed above would prove that the plaintiff had no financial capacity to pay the remaining part of the sale consideration, and certainly the plaintiff cannot be held to be the one entitled to specific performance.
51. My discussion supra also would evince as to how even the very claim of the payment of Rs.25,400/- from out of her own pocket or earnings is dubious and it is a big pill to swallow as she was only a house maid and her children are coolies. Wherefore the plaintiff is not entitled to the discretionary relief of specific performance.
52. The other decisions highlighted by the learned counsel for R10 to R37 relating to the point readiness and willingness are as follows:
(i) 2008 (4) CTC 494 FATHIMA MAJEED VS SUBHAPRATHA RAVIKUMAR
(ii) 2000(4) CTC 278- INDRAVATHI VS. KAMALA;
(iii) (1999) 7 SUPREME OURT ASES 303 RAMKUMAR AGARWAL AND ANOTHER VS. THAWARR DAS (DEAD) THROUGH LRS;
(iv) 1997(1) CTC 360 SEEMI AMMAL VS. VEERAYEE AMMAL
53. As such, there is no quarrel over with such proposition. Even though the plaintiff has claimed that she has been in possession and enjoyment of the items 1 to 8 of the suit properties and cultivating the same and also in possession of the first item-house, nonetheless there is absolutely no evidence to prove that she has been in possession of the items 1 to 8 of the suit properties. However, the first item of the suit property is concerned, it is the case of R10 to 37 that the plaintiff trespassed into a portion of the suit house at the verandah and squatting there, which amounts to irruption But one point is clear that no delivery of possession under Ex.A1 is contemplated. In such a case there is no shred of evidence to prove as to when and how the plaintiff entered into possession of the house. The plaintiff who seeks the discretionary relief of specific performance should prove that she was not illegal in her approach in acquiring possession of even any part of the house. The above preponderance of probabilities unequivocally indicates that she illegally entered into possession of a part of the 9th item of the suit property. Wherefor this Court cannot hold that the plaintiff is legally in possession of the part of the 9th item of the suit property.
54. The lower Court correctly discussed the point relating to possession and held that the plaintiff is not in possession of items 1 to 8. The trial Court also clearly gave a finding that the plaintiff placed reliance on her own oral depositions, which are not having the backing of her pleadings.
55. Ex.A5 the reply notice given by D1 and D2 and Ex.A6-the reply notice given by D3 would also are in support of the stand of the defendants. The learned counsel for the plaintiff would argue that in Ex.A5 and Ex.A6 there is only a bald reference to the details relating to the sale effected by D1 and D2 in favour of D3.
56. Be that as it may, the fact remains that even before the issuance of Ex.A1 notice by the plaintiff, D1 and D2 sold the items 1 to 8 in favour of D3. 73. Mr.P.Gopalan the learned counsel for the plaintiff placing reliance on the decision of the Honourable Apex Court reported in 2006(1) L.W. 614 S.BRAHMANAND AND ORS. VS. K.R.MUTHUGOPAL (D) AND ORS would develop his arguement that the suit filed by the plaintiff on 4.3.1982 is well within time. Ex.A1 is dated 9.7.1979 and as such within three years period from 11.10.1979 the suit was filed. However, merely because within the period of limitation the suit was filed there is no presumption that the plaintiff was ready and willing to perform her part of the contract.
57. The learned counsel for the plaintiff would unconvincingly put forth the point that since D1 and D2 sold as per Ex.B6 items 1 to 8 in favour of D3 for a sum of Rs.30,000/- and item No.9 would virtually be for lesser than the advance amount, however D1 and D2 were already in receipt of Rs.24,500/= as advance from the plaintiff and D1 and D2 could have very well executed the sale deed in respect of item No.9 and that respondents 10 to 37 cannot be heard to contend that the plaintiff was not having the financial ability to pay the remaining part of the sale consideration
58. In my considered opinion exfacie and prima facie such an arguement is neither here nor there and it cannot be countenanced. The plaintiff cannot imaginarily bifurcate the transaction as contemplated in Ex.A1 and plead that the house alone was worth certain amount, that the advance amount should have been adjusted towards the value of the house and that accordingly D1 and D2 should have executed the sale deed. Ex.A1 refers to items 1 to 9 and the plaintiff cannot pick and choose out of them item No.9 and call upon D1 and D2 to adjust the advance amount towards 9th item alone. Furthermore that is not the case of the plaintiff in the plaint itself. There is nothing to indicate that the plaintiff had impleaded D1 and D2 that she gave up the items 1 to 8 and insisted for executing sale in respect of item No.9 only. As such the analysis of the evidence based on the dicta found enunciated in the cited precedents, would make it clear that even though time is not the essence of contract, there are total inertia or neglect on the part of the plaintiff in performing her part of the contract, that she had no financial ability also to pay the remaining part of the sale consideration and get the sale deed executed in her favour; that the plaintiff was not ready and willing to perform her part of the contract and that she is not the real proposed purchaser at all. Accordingly points (i) and (ii) are decided as against the appellant/plaintiff.
59. Point No.(iii) Discussion relating to D3’s purchase of suit items 1 to 8:
D3 would contend that he is a bona fide purchaser for value without notice of Ex.A1.
60. The learned counsel for the plaintiff would argue that D3 in one breath would contend as though he was not aware of Ex.A1 while purchasing the suit items 1 to 8 and in another breath he would contend that he cancelled his own agreement to sell with D1 and D2 relating to the 9th item of the suit property after coming to know of the litigation.
61. In this connection the learned counsel for the plaintiff would cite the decision of the Division Bench of this Court reported 81 LAW WEEKLY 90 VEERAMALAI VANNIAR (DIED) AND OTHERS V. THADIKARA VANNIAR AND OTHERS, certain excerpts from it would run thus:
“It is sufficient to refer to the leading decision in Himatlal Motilal v. Vasudev Ganesh (1), in which it was held that in order to defeat the prior equity to which the plaintiff was entitled, the subsequent purchasers were bound to establish three things that (1) they were purchasers for value (2) bona fide and (3) without notice; and that hif the entire price had not been paid and a security had been given for the payment of the balance of the purchase price, the defendants cannot resist the claim for specific performance. (Vide observations at page 451 of the above decision). S.27(b) of the Specific Relief Act is only the statutory provision of the principles enunciated in the decisions in England to which reference has been made in this Bench decision of the Bombay High Court. The principle in this decision was referred to with approval in Mohammed Haneef Sahib v. Board of Trustees, Jumma Masjid Adoni (2), in which it was held that the words in S.(b) ‘ who has paid this money’ mean the transferee who has paid the whole off the consideration and not a transferee who has paid only part of it. Our attention was also drawn to the decision of Justice Varadachariar J., in Arrunachala v. Madappa (3), in which the learned Judge (Varadachari J) called for a finding from the trial Court as to the dates on which the subsequent purchaser paid and cold be deemed to have paid the purchase price. A perusal of the judgment shows that the entire purchase money should have been paid before the subsequent purchaser obtained knowledge off the prior agreement of sale. In the instance case, even at the time when the first defendant gave evidence, there was admittedly a balance of Rs.7000/- due under the three sale deeds (vide D.W.1’s evidence at page 44 of the typed papers). The learned Judge has committed a serious error in thinking that the words ‘who has paid his money’ in S.27(b) are equivalent to ‘who has paid his money’ or ‘who has agreed to pay his money’. The Judge has overlooked that it is the actual payment of the money which alone confers the right so as to prevail over a prior agreement of sale.
. . . . . . . . . . It is this identical point which has been considered by the leading decisions in England and in India and the view has been uniformly taken all the cases that it is the duty of the subsequent purchaser to enquire the persons in possession as to the precise character in which he was in possession at the time when he was in possession at the time when the subsequent sale transaction was entered into. . . . . . . “(emphasis supplied)
Absolutely there is no quarrel over such a proposition enunciated in the cited precedent.
62. It has to be seen as to whether in this case D3 failed to perform any one of the duties cast upon a bona fide purchaser. Ex.A1 itself contemplates time up to 11.10.1979 as the period for performance, but D3 purchased the suit property long after that date as per Ex.B6 the sale deed dated 14.12.1981. Incontrovertibly and indubitably it is clear that no notice was issued by P.W.1 or any publication was made by her well before the emergence of Ex.B6. There is nothing to indicate that D3 was aware of Ex.A1 which is an unregistered agreement to sell.
63. The plaintiff cannot press into service the cited decision of the Division Bench of this Court reported in 81 Law Weekly 90 for the reason that in that case the proposed purchaser under the agreement to sell was in possession of the suit property and in such a case the genuine question had arisen in that case as to why the alleged bona fide purchaser had not enquired about the nature of the possession of the person in occupation. Here the lower Court in paragraph 8 and 9 of its judgment discussed extensively with reference to documents available on either side and clearly gave the finding that the plaintiff was not in possession of items 1 to 8 of the suit property. There is nothing to indicate that D1 and D2 put the plaintiff in possession of the suit property. Had really D1 and D2 intended to put the plaintiff in possession then it is not known as to what prevented the plaintiff in getting it recorded in Ex.A1 itself. As such, the plaintiff’s plea that she has been in possession and enjoyment of the items 1 to 8 is nothing but an utter falsehood and a bare faced lie.
64. Ex.B7 to Ex.B13 are the antecedent documents pertaining to those items of properties and the trial Court referring to those documents held that D3 as D.W.4 after going through those documents got satisfied about the title of D1 and D2 and the genuineness in selling the property in favour of D3. In fact, the antecedent title itself were in possession of D1 and D2, along with the kist receipt and the same were handed over by them to D3. Exs.B14 to B.41 are all kist receipts and revenue related ones, which would support the contention of D1 and D2 that it was D1 and D2 who were in possession and enjoyment through their tenants D.W.2 and D.W.3.
65. D.W.2 and D.W.3 deposed cogently and coherently in respect of possession relating to items 1 to 8. D3 as D.W.4 would clearly and categorically depose before this Court that at the time of he purchasing the suit item 1 to 8 as per Ex.B6, D.W.2 and D.W.3 were cultivating the land and he made enquiries with them and reasonably and logically got satisfied about the possession being with D1 and D2 through D.W.2 and D.W.3.
66. On the other hand the falsity of the plaintiff’s case is clearly exposed by the depositions of P.W.2 and P.W.3, who in their chief-examinations would artificially state in a twisted manner that for about three years, P.W.1 had been in possession and enjoyment of the items 1 to 8; D.W.2 and D.W.3 as the persons cultivating the land under the plaintiff. On the contrary the very D.W.2 and D.W.3 would clearly and categorically on oath depose before the Court that they have been cultivating only under D1 and D2 and not under the plaintiff. It is therefore clear that the plaintiff attempted to give colour to the possession of D.W.2 and D.W.3 and tried to gain out of it in the litigative battle, but it ended in a fiasco. In the absence of any evidence showing that Dw.2 and D.W.3 were tenants under the plaintiff, the depositions of D.W.2 and D.W.3 which are in no way falsified during cross-examination would torpedo the plaintiff’s claim relating to her alleged possession over the suit items 1 to 8.
67. The learned counsel for R10 to R37 would cite the decision of the Honourable Apex Court reported in 1999(7) SUPREME COURT CASES -RAM KUMAR AGARWAL AND ANOTHER VS. THAWAR DAS (DEAD) THROUGH LRS, which would posit the proposition that the plaintiff should not come with false pleas and the absence of readiness and willingness on the part of the plaintiff would disentitle the plaintiff from invoking Section 53-A of the Transfer of Property Act, so as to seek protection of the plaintiff’s possession. My discussion supra relating to items 1 to 8 would indicate that the plaintiff was not in possession of the suit property at any time and relating to the first item she gained ingress to a portion of the property as put forth by D.W1 in his deposition. As such this Court cannot upheld the plaintiff’s possession as a legal one.
68. At this juncture my mind is reminiscent of the popular dictum as found posited in the aforesaid decision and the various other decisions that the plaintiff who approached the Court for obtaining the discretionary relief of specific performance must come with clean hands and there should not be any falsity. But in this case my above discussion supra would exemplify that the plaintiff’s pleas smack falsehood. The learned counsel for R10 to R37 placed reliance on the decision of the Honourable Apex Court reported in (1998) 5 SCC 537 JAGAN NATH VS. JAGDISH RAI AND OTHERS, which would highlight the point that before labelling a third party purchaser as one not a bona fide purchaser there should be evidence to show that he had previous knowledge about the agreement. In this case D3 positively proved that he made enquiries as a prudent purchaser without having any mala fide intention. Hence in this factual matrix and in the wake of evidence discussed supra it is clear that D3 is a bona fide purchaser for value without notice of Ex.A1 the agreement to sell.
69. Over and above those evidence set out supra, on D4’s side-the purchaser of the property from D3 would also place reliance on the previous litigation which emerged at the instance of deceased D4 as against D3 and others. In that connection a memo also was filed. At the request of the Advocates on D4’s side I have sent for the previous records in A.S.16 of 1992. The perusal of these records would reveal that the deceased R4 herein Ramalingam filed earlier the suit in O.S.No.154 of 1987 in Sub Court Poonamallee for specific performance of the agreement to sell, which emerged between Ramalingam and D3 herein, by citing D3 herein and the plaintiff herein as D2 therein.
70. The perusal of the judgement of the Sub-Court Poonamallee in O.S.No.154 of 1987 would reveal that the plaintiff herein also was one of the defendants in that suit and she appeared in person before the Court and no written statement was filed on her side. It is therefore clear that the plaintiff was aware of the earlier proceedings and she was a party in those proceedings and ultimately the Sub Court decreed the suit for specific performance in favour of Ramalingam R4 herein.
71. The learned counsel for the plaintiff would argue that the said suit O.S.No.154 of 1987 emerged subsequent to the decision rendered by the lower Court in O.S.No.20 of 1982 which is connected with this appeal and as such what are all happened subsequent to the said judgment in the relevant case and during the pendency of these appeal proceedings herein all are hit by lis pendens and the ultimate decision in this appeal alone would be binding on all the parties concerned.
72. No doubt O.S.No.154 of 1987 instituted by R4 Ramalingam itself would demonstrate that it emerged only in the year 1987 and all those proceedings took place during the pendency of these appeal proceedings. Absolutely there is no plausible explanation forth coming from the plaintiff’s side as to what prevented the plaintiff as D2 therein, even though she appeared before the Court, to file an application under Section 10 of the Code of Civil Procedure so as to get that suit stayed on the principle of res sub judice.
73. Be that as it may, here this Court is not very particular in placing reliance on the proceedings in the said suit O.S.No.154 of 1987, but what I would like to observe is that there are latches on the part of the plaintiff in processing her claim.
74. The appeal A.S.No.16 of 1992 which was filed as against the said judgment and decree in O.S.No.154 of 1987 before this Court was dismissed on 27.2.2006 on the ground that D3 herein did not take steps to prosecute the appeal by taking out notice as ordered. However the learned counsel for the plaintiff herein is right in pointing out that the said A.S.No.16 of 1992 was dismissed even before taking notice to R2 there in who is the plaintiff herein Vasantha Ammal. As such, I would point out already that those previous proceedings in O.S.No.154 of 1987 would indicate only that the plaintiff was not diligent in processing her claim and this appeal is being decided not on those proceedings relating to O.S.No.154 of 1987 and the consequent appeal 16 of 1992.
75. The learned counsel for the plaintiff would cite the decision of the Honourable Apex Court reported in (2007) 3 M.L.J. 608 M.M.S.INVESTMENTS, MADURAI AND OTHERS VS. V.VEERAPPAN AND OTHERS, which has been followed by me in my previous judgment reported in (2008)4 M.L.J.766-A.RAMANATHAN CHETTIAR VS. R.RANGANAYAKI AND OTHERS, certain excerpts from my judgment would run thus:
“14.The question arises as to whether without filing written statement before the trial Court, the third defendant would be competent to argue on merits the entire case.
16. In fact, the aforesaid judgment emerged consequent upon the appeal filed the appellant in the case decided by this Court in M.M.S.Investments v. Veerappan(supra) which has been cited by the learned counsel for the third defendant herein.
17. The perusal of the aforesaid extract and more so, the entire judgment, would highlight the fact that the subsequent purchaser of the suit property cannot be heard to contend the facts relating to the transaction which emerged between the parties to the agreement to sell and at the most the subsequent purchaser could contend that he is a bona fide purchaser for value without notice of any dispute between the parties to the agreement to sell.. . . . . . ”
76. I would like to clarify that absolutely there is no second thought over the Honourable Apex Court’s judgment as followed by me in my previous decision cited supra but in that case the facts are different as it is obvious from the above excerpts and the original owner did not dispute the proposed purchaser/plaintiff’s readiness and willingness to perform his part of the contract at the appellate stage and in such a case the third party cannot invoke the plea that the plaintiff was not ready and willing to perform his part of the contract, but he could only contend that he was a bona fide purchaser for value without notice of the agreement to sell. But here D1 and D2 contested the suit and got it dismissed on the ground that the plaintiff failed to prove her case that she was ready and willing to perform her part of the contract and in the appeal also R10 to R37 the parties who stepped into the shoes of D1 and D2 stick on to the stand of D1 and D2 and in such a case it is obvious and axiomatic that there is no basis for the plaintiff to proceed as against D3 and furthermore D3 also proved independently as set out supra that he is a bona fide purchaser for value without notice of Ex.A1. R4 purchased the property from D3 and consequently R4’s title also stood stand on a strong ground even though it emerged during the pendency of the suit.
77. The learned counsel for the plaintiff would cite the decision of this Court reported in 100 L.W.750 BOLE NAIDU VS. N.KOTHANDARAMA PILLAI AND OTHERS to highlight the point as to what are the characteristics of a bona fide purchaser for value, an excerpt from it would run thus:-
“28. . . . The burden of proof is on the purchaser. If the purchaser had not taken the ordinary precaution which a normal purchaser will take then his conduct cannot be said to be bona fide. In this case D.W.1 had stated that he had not taken any steps to obtain an encumbrance certificate. He had also not consulted any lawyer relating to the title of the property. Generally the sale is preceded by an agreement which will give a breathing time for the purchaser to make necessary investigation. In this case there is no such agreement and the sale deeds Exs.B1 and B2 were entered into straight away. Respondents 3 and 4 had also not filed an application for encumbrance certificate in respect of the property in order to ascertain whether the property is free from encumbrance. Making of necessary enquiries and obtaining off the encumbrance certificate will indicate the bona fide of the purchaser and a purchaser who has ventured into the transaction without observing the abovesaid formalities cannot be said to be a bona fide purchaser coming within the exception to S.19(b) of the Specific Relief Act. Judged from the conduct as borne out from the evidence of D.W.3 respondents 3 and 4 cannot be said to be bona fide purchasers. The conclusion arrived at by the trial court that the respondents 3 and 4 are the bona fide purchasers cannot be supported in this regard.”
78. In the case cited a registered agreement to sell was involved, whereas there is no question of obtaining encumbrance certificate arises in this case, as Ex.A1 is an unregistered agreement to sell. In all cases, agreement to sell need not precede a sale and it was only an obiter and not ratio decidendi concerning the facts involved in that case. Here, as set out supra, from the evidence available independent of the previous proceedings in O.S.No.154 of 1987 it is clear that the plaintiff was not ready and willing to perform her part of the contract and because of her latches D1 and D2 were made to sell the property in favour of D3, who was a bona fide purchaser for value without notice of the agreement to sell. Accordingly point No.(iii) is decided as against the appellant/plaintiff and in favour of the defendants.
79. In view of the ratiocination adhered to in deciding the above points I could see no merit in the appeal and accordingly, the appeal is dismissed, confirming the judgment and decree of the trial Court. However, in the circumstances of this case, there is no order as to costs. The plaintiff is directed to pay the Court fee payable under this appeal and it shall be recovered from the plaintiff as per law.
80. On pronouncement of the judgment, the learned counsel for the appellant/plaintiff would make an extemporary submission to the effect that the appellant/plaintiff might be permitted to withdraw the amount deposited by the other side, in compliance with the judgment and decree of the trial Court. Accordingly, his submission is accepted and the appellant/plaintiff is permitted to withdraw the deposited amount.
Msk
To
The I Additional Subordinate Judge,
Chengalpattu
[ PRV / 15829 ]