JUDGMENT
S. Ashok Kumar, J.
1. The unsuccessful plaintiffs before the first appellate court is the appellant herein.
2. The plaintiff filed the suit for specific performance of the suit agreement and for permanent injunction against the defendants from interfering with the possession of the plaintiff in the suit property.
3. According to the plaintiff, the first defendant on 26.6.1978 representing himself as the Owner of the property bearing Plot No. 128A, Door No. 2, Jawahar Nagar, Jaffarkhanpet, Chennai-95, entered into an agreement with the plaintiff agreeing to sell the suit property for a sum of Rs. 2000/= and received an advance of Rs. 600/= and to receive the balance amount and complete the sale within 5 years from 26.6.1978. But when the plaintiff tendered the balance amount and called upon the defendants to execute the sale deed, the defendants failed and neglected to receive the balance and execute the sale deed as undertaken by them. On 22.11.1982, the second defendant, who is the wife of the first defendant sent a lawyer’s notice representing that she is the owner of the property and that the plaintiff is only a tenant in respect of the vacant land o a monthly rent of Rs. 5/= and called upon the him to pay the rent and also to deliver vacant possession. Subsequent to the agreement, the plaintiff has put up construction of her own in the plot agreed to be sold out to the plaintiff and has been living there right from 26.6.1978. There is no relationship of landlord and tenant between them. Hence the suit.
4. The first defendant states that the second defendant, his wife died on 30.10.1983 and sine the suit is filed against the dead person it is liable for dismissal as against the second defendant is concerned. The allegation of the plaintiff that he represented as the owner of the suit property and agreed to sell the property for Rs. 2000/= to the plaintiff is baseless. Advance of Rs. 600/= was also not received by him. It is true that a sale agreement had been entered between them for sale of 1/2 of the plot bearing Plot No. 128A, Door No. 2, Jawahar Nagar, Jafferkhanpet, Chennai-95 on 26.6.1973 and received a sum of Rs. 400/= as advance with a condition that the plaintiff has to register the said portion of the plot within 5 years from the date of agreement by paying the balance sale consideration, for which condition the plaintiff also gave a consent letter to the first defendant. The first defendant on 1975 sold the other 1/2 plot to one Shanthi Wife of Mohan and delivered possession to her. The plaintiff instead of fulfilling the condition after expiry of 5 years approached the second defendant and obtained her permission to occupy the said plot as a lessee by putting up a superstructure on a monthly rent of Rs. 5. She was not regular in payment of lease rent and used to pick up quarrel with the defendants and hence they issued a lawyer notice on 31.1.1983 demanding to vacate and hand over vacant possession by removing the superstructure put up by the plaintiff at her cost. The plaintiff did not accede to that, but filed the present suit for specific performance of the agreement. The agreement dated 26.6.1973 could not be enforced on account of the expiration of the time provided in the said agreement.
4. On the said pleadings and on hearing the learned Counsel on either side and taking into consideration of the documentary and oral evidence, the trial court decreed the suit. On appeal by the defendants, the first appellate court allowed the appeal dissenting with the findings of the trial court. Aggrieved by the same, the second appeal has been preferred by the plaintiff.
5. At the time of admission, the following substantial Question of Law was framed by this Court for consideration:-
Whether the plea of limitation not raised in the lower court and not an issue between the parties be raised without even being raised as a ground in the first appellate court?
6. Learned senior counsel appearing for the appellant/plaintiff contended that when the plaintiff tendered the balance sale consideration the defendants neglected and refused to receive the payment and execute the sale deed which shows the readiness and willingness on the part of the plaintiff. He also relied on the judgment of the Apex Court in Aniglase Yohannan v. Ramlatha and Ors. in support of his contention. He also submitted that though the first defendant has stated there there was only an agreement of the year 26.6.1973 no such document has been produced and in Ex.A.1 it is not clear whether it is 1973 or 1978 as water has been alleged poured. In the evidence D.W.1 says that about 10 years back he received the advance amount which only means that Ex.A.1 sale agreement is of the year 1978 i.e., 26.6.1978 as he has been examined in the year 1989. Learned Senior counsel also argued that though the defendants allege that the plaintiff’s possession is only as a tenant, no single payment as rent has been proved.
7. Inspite of adjournments, there is no representation for the respondents and this court reserved the matter for judgment.
8. The plaintiff’s case is that on 26.6.1978 she entered into the suit agreement with the first defendant for sale of 1/2 of the suit property in Plot No. 128A, Door No. 3, Jawahar Nagar, Chennai-95, for a sum of Rs. 2000/= and the first defendant also received an advance of Rs. 600/=. The case of the defendants is that there was an agreement on 26.6.1973 to sell 1/2 of the Plot No. 128A, Door No. 2, Jawahar Nagar, Chennai-95 and received an advance of Rs. 400/= and the plaintiff has been permitted to reside by putting up a superstructure at her own cost only as a lessee and she has defaulted in payment of rent and hence notice has been issued. But, even in his chief examination itself, the first defendant has deposed that he given a rental receipt for Rs. 600/= about 10 years ago. Though the defendants allege that there was an agreement on 26.6.1973, no such document has been produced. The first defendant also admits the signature found in Ex.A.1. He also admits that at the time of signing Ex.A.1, the plaintiff, Krishnan Nair and one Alagappan were present. He also admits that he received Rs. 400/= and again Rs. 200/= as loan from the plaintiff. From the deposition of D.W.1 it is clear that during 1978 he has received Rs. 600/= and executed Ex.A.1 sale deed. Even assuming that Ex.A.1 sale deed is dated 26.6.1973 as alleged by the defendants, then the advance mentioned therein should be Rs. 400/= and not Rs. 600/=. The first defendant even admits that other half of the plot in Plot No. 128 had been sold to one Shanthi, Wife of Mohan. But copy of the said sale deed has not been produced and hence the date of sale is not known. Since half of the plot has been sold to the said Shanthi, and in the other half the plaintiff is residing by putting up a superstructure, the Plot Numbers have been described as 128 and 128A.
9. As regards the readiness and willingness, as rightly pointed out by the learned senior counsel, it is stated in the plaint itself that when the plaintiff paid the balance sale consideration, it is only the defendants, who neglected and refused to receive the same and execute the sale deed in favour of the plaintiff. Being illiterate women she cannot be expected to prove her readiness and willingness, beyond this, except to file the suit within three years. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plait, he should not be denied the relief as has been held by the Supreme Court in the judgment . Admittedly the plaintiff has been residing in 1/2 of the plot by putting up a superstructure at her own cost. Unless there was such an agreement of sale no prudent man would leave a person to reside there that too as alleged by the defendant when the plaintiff defaulted in payment of rent. Even assuming that she defaulted in payment of rent for years together, the defendants have not chosen to evict her or to enhance the rent by resorting to the Rent Control proceedings.
10. As regards Section 43 of the Transfer of Property Act, it only says that “where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration such transfer shall at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists”. Even in the Plaint itself, the plaintiff submitted that “…on 6.6.1978 the first defendant representing himself as the owner of the property bearing Plot No. 128A, Door No. 2, Jawahar Nagar, Jaffarkhanpet, Madras-95….” Thus the first defendant has erroneously represented to the plaintiff that he is the owner of the suit property. When the first defendant himself falsely represented that he is the owner of the suit property, the interpretation by the first appellate court that he did not represent that he was authorised to sell is is a misconstruction of the Section and Section 43 of the Transfer of Property Act can very well be invoked in this case. Admittedly, when Ex.A.1 has been signed the evidence of the parties is that the second defendant was present, but she did not sign either as the owner or as the witness. But, it is the not the first defendant that he is only having the life interest after the death of the second defendant and no such document viz., Will or testament has been produced to the said effect. Thus Ex.A.1 dated 26.6.1978 executed by the first defendant is valid and it is enforceable.
11. As regards applicability of Section 54 of the Limitation Act, since it has been held that Ex.A.1 is of the year 1978, taking into consideration of the evidence of D.W.1 that he received Rs. 600/= during 1978, it has to be held that the suit has been filed within six months from the date of failure to execute the sale deed i.e., 19.12.1984. In the circumstances it is held that though the plea of limitation has not been raised as an issue before the courts below, as rightly held by the first appellate court the court can invoke the issue suo motu and decide the matter. However, as stated above, since the suit has been filed within the period of limitation, even if the question of law is answered against the appellant, the same will not prevent the reliefs to which the plaintiff is entitled to.
12. In the result, the Second Appeal is allowed, setting aside the judgment and decree of the first appellate court and confirming the judgment and decree of the trial court. No costs.