IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 05/07/2002
Coram
THE HONOURABLE MR. JUSTICE P. SHANMUGAM
A.S. No.23 of 1988
S.P. Muthusamy .. Appellant
vs.
1. V. Thayammal
2. A. Balasubramaniam
3. P.G. Vijayalakshmi
4. Pappammal
5. A. Palanisamy
6. P. Vimala
7. Dr. N. Venkatachalam
8. R. Kamalammal
9. M. Balasubramaniam
10. G. Geeva
11. M. Duraisamy
12. Palanisamy Gounder
13. Kuppathal
14. G. Duraisamy
15. Velusamy
16. Muthuvel
17. Neelamegam
18. Sundaramurthy
19. A. Suseela
20. Subbaraya Gounder
21. R. Santhamani
22. P. Subbaraya Gounder
23. Sundarambal
24. M/s. Tirupur Fulchand & Sons,
52/B-4, P.N. Salai,
Tirupur-2.
25. V. Palanisamy
(R-25 brought on record as
L.R. of the deceased R-1
vide court order dated
4.12.2000 in CMP No.2475/93) .. Respondents
PRAYER : Appeal against the Judgment and Decree of the III Additional
Subordinate Judge, Coimbatore dated 14.12.1987 made in O.S. No.346 of 1986.
!For Appellant : Mr. R. Sekar for
M/s. Sarvabhauman Associates.
^Respondents : Mr. K. Chandramouli, Sr. Counsel
for Mr. K. Rakhmathan
(For R-5 to R-10)
Mr. K. Ravichandra Babu
(For R-1 to R-25)
:J U D G M E N T
Plaintiff is the appellant. The suit for specific performance to
execute a gift deed as per the agreement dated 16.2.1977 was dismissed by the
Subcourt, Coimbatore and the present appeal is against this judgment.
2. The facts of the case are as follows :
The plaintiff claimed that he was a close and intimate friend and the
confidential adviser of the first defendant’s father Late Palanisamy Gounder,
who owned large extent of properties. The first defendant’s was living with
her father Palanisamy Gounder. According to the plaintiff, in view of his
close association with the first defendant’ s father and at her request, he
influenced the mind of the first defendant’s father and got a will dated
27.11.1967 executed by him, bequeathing almost all his properties in favour of
the first defendant. The plaintiff helped the first defendant in the suit
filed by one P.K. Palanisamy for specific performance. According to him, he
also helped her when a dispute about the will of her father was raised. In
recognition of the plaintiff’s assistance and support, the first defendant
promised to convey, by means of gift, an extent of three acres of land and
executed a letter of agreement dated 16.2.1977. However, she did not execute
the gift deed inspite of several repeated demands, and on the contrary, she
alienated certain portions of the land promised to be conveyed to him, both
prior to and subsequent to the suit and hence, the above suit was filed. The
first defendant opposed the relief and denied any such assistance pleaded by
the plaintiff in her favour. She denied of having executed any agreement as
alleged. She also pleaded that the plaintiff would have utilised blank papers
obtained from her when certain litigations were pending, in the guise of
preparing affidavits. On these pleadings, nine issues were framed and after a
detailed examination of the matter, the learned Judge found that the agreement
dated 16.2.1977 in favour of the plaintiff is true. However, the learned
Judge held that the agreement is opposed to public policy inasmuch as the gift
deed was agreed to be given for assisting the first defendant to obtain a will
in her favour and to defend the case unlawfully. The learned Judge also found
that the plaintiff cannot seek for specific performance of such an agreement.
It was also found that the alienations made in favour of defendants 2 to 12
were valid and that they were bonafide purchasers of the properties. The
appeal is against this judgment.
3. Learned counsel appearing on behalf of the appellant submitted
that the trial court having found that the agreement is true and genuine,
ought to have decreed the suit. According to him, in the absence of any
pleading that the agreement is opposed to public policy, the court below
erroneously held so, that this amounts to a special pleading on behalf of the
defendant and that the trial court failed to consider the valuable services
rendered by the plaintiff and in lieu of the same, as a consideration, the
first defendant agreed to convey the property. According to him, the
conclusion of the learned Judge that the assistance of the plaintiff is
motivated and therefore it is hit by Section 23 of the Indian Contract Act on
the vice of inducement is erroneous. The learned Judge, having found that the
appellant had helped the first defendant to lay out the land belonging to her,
the expression of the word ‘gift’ used in Ex.A.20 is merely a nomenclature for
a transaction that has to be taken and therefore, it will not make the
agreement is one without consideration.
4. The respondents, besides supporting the findings of the learned
Subordinate Judge, contended that the suit prayer as such is not maintainable
and that the judgment and the finding does not require any interference except
reiteration of the same.
5. Before I go into the factual aspect of the matter and the findings
of the court below, I feel that the appeal can be disposed of on the legal
question itself. The prayer in the plaint in the suit is as follows :-
“The plaintiff therefore prays that this Hon’ble Court may be pleased
to grant a decree :
(i) directing the 1st defendant to execute a gift deed as per the
agreement dt.16.2.77, and get the same registered at her expenses;
(ii) on her failure, to execute the document within a time to be
specified, then the court may be pleased to execute a gift deed in respect of
three acres of land from the suit properties;
(iii) directing the 1st defendant to demarcate and deliver possession
of the three acres of land gifted to the plaintiff within a specified period;
(iv) directing the 1st defendant or such of them who may be found
liable to pay the costs of the suit to the plaintiff; and
(v) for such other and further reliefs as may be deemed just and
necessary in the circumstances of the case.”
6. The plaintiff has categorically stated in the plaint as follows :
“The first defendant promised to convey by means of a gift, an extent of three
acres of land in T.S. Nos.442 and 443 of Thottipalayam Village, Tiruppur
Town.” Again, it is stated in paragraph 7, “The first defendant executed a
letter of agreement on 16.2.1977 whereunder she assured to gift an extent of
three acres of land”; and again, in paragraph 9, it is stated, “she did not
execute the gift deed pursuant to the letter of agreement dated 16.2.1977
inspite of several and repeated demands personally and through her son. On
the other hand, in contravention of the agreement, the first defendant, in the
course of a couple of months, sold certain portions of the land agreed to be
gifted to the plaintiff in favour of defendants 2 to 4. He further says as
follows :
“So, the plaintiff sent a registered lawyer’s notice dated 30.4.1985
to the first defendant calling upon her to fulfill the assurances and promises
and to execute the gift deed.”
In the cause of action paragraph also, it is stated that the agreement assured
a gift deed to be executed. Therefore, from the pleadings and the prayer, it
is clear that the plaintiff wants a gift deed to be executed.
7. “Gift” has been defined under Section 122 of the Transfer of
Property Act as the transfer of certain existing movable or immovable property
made voluntarily and without consideration by one person called the donor to
another called the donee and accepted by or on behalf of the donee. As per
this definition, the gift could be made only voluntarily and without
consideration. The appellant, in his plaint, has categorically stated that he
seeks for a direction and decree to the first respondent to execute a gift
deed. He further says that the agreement was made in consideration of his
alleged assistance to the first defendant.
8. Section 20 of the Specific Relief Act, 1963 says that the
jurisdiction of a civil court to grant a decree for specific performance is
discretionary and the discretion of the court has to be exercised on a sound
and reasonable principle. Sub-section 20(a) says that a decree for specific
performance cannot be granted if the contract or the conduct of the parties or
the other circumstances under which the contract was entered into are such
that the contract, though not voidable, gives the plaintiff an unfair
advantage over the defendant and that under the circumstances, though the
contract cannot be rendered voidable, makes it inequitable to enforce the
specific performance. It has been well settled that if the court is satisfied
that there has been an illegality, it is bound to take the point of its own
notion. In such a case, it must apply the over-riding basic principle of
public policy and the court should not assist a plaintiff by enforcing an
illegal contract. If the illegality is disclosed, the court must take notice
of it although it is not pleaded. In STATE OF PUNJAB VS. AMAR SINGH (A.I.R.
1974 S.C. 994), it was held that by an agreement, parties cannot be achieve
what is contrary to law and a decree merely based on such agreement cannot
furnish a judicial amulet against statutory violation. In UNION CARBIDE
CORPORATION VS. UNION OF INDIA (A.I.R. 1992 S.C. 248), their lordships held
that the validity and durability of a consent order are wholly dependent on
the legal validity of the agreement on which it rests. Such an order is
amenable to be set aside on any ground which would justify the setting aside
of the agreement itself and these principles are unexceptionable. Therefore,
the argument of the counsel for the appellant that there was a special
pleading by the learned Judge in holding that the agreement is opposed to
public policy cannot be accepted. As stated earlier, gift cannot be obtained
by compulsion through a decree of a court and it can only be obtained without
consideration. An enforcement of such a gift will be clearly contravening
Section 122 of the Transfer of Property Act. The definition of ‘Gift’ says
that it should be without any consideration. Section 23 of the Indian
Contract Act says that the consideration of an agreement is lawful unless the
court regards it as opposed to public policy. Therefore, it is open to the
court to consider whether the consideration is lawful and is not opposed to
public policy. The relief of specific performance being discretionary, the
court is always entitled to consider whether the contract is fair and is
equitable before seeking to enforce the agreement. Thus, looked at from any
angle, I find that the appellant cannot enforce the agreement to compel the
first respondent to execute a gift.
9. The argument of the learned counsel for the appellant that though
the terminology used in the agreement is gift, the court can mould the relief
to direct the conveyance in favour of the appellant. The said argument is
totally unacceptable. The court cannot modify the terms of the contract. As
per the terms of Ex.A.20, it is seen that what the parties intended is only
execution of a gift deed and not any other document and the plaint
categorically and clearly proceeds that the first defendant agreed to execute
a gift deed in favour of the plaintiff and therefore, there is absolutely no
scope to grant the specific performance of such an agreement, and the finding
of the court below that the agreement is opposed to public policy is correct
and calls for no interference in the facts and circumstances of the case.
10. It is rightly pointed out that in case where the plaintiff
himself accepted the alienation of the properties in favour of defendants 2 to
24 prior to and pending the suit, the plaintiff ought to have sought for a
direction to those respondents to execute the sale deed. In this case, no
such relief had been sought for. On this ground also, the suit is liable to
be dismissed.
11. For all the above reasons, the appeal is liable to be dismissed
and is accordingly dismissed with costs.
Index : Yes 05..07..2002 Internet : Yes ab To 1. The III Additional Subordinate Judge, Coimbatore (with records). 2. The Record Keeper, V.R. Section, High Court, Chennai. P. SHANMUGAM, J. Judgment in A.S. No.23 of 1988