{"id":34994,"date":"2003-04-04T00:00:00","date_gmt":"2003-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-shanmugham-vs-rathinam-rathinavelayudham-on-4-april-2003"},"modified":"2014-06-07T11:31:16","modified_gmt":"2014-06-07T06:01:16","slug":"n-shanmugham-vs-rathinam-rathinavelayudham-on-4-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-shanmugham-vs-rathinam-rathinavelayudham-on-4-april-2003","title":{"rendered":"N. Shanmugham vs Rathinam @ Rathinavelayudham … on 4 April, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
N. Shanmugham vs Rathinam @ Rathinavelayudham … on 4 April, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 04\/04\/2003\n\nCORAM\n\nThe Hon'ble Mr. Justice P. SHANMUGAM\nand\nThe Hon'ble Mrs. Justice PRABHA SRIDEVAN\n\nAppeal Suit No.153 of 1989\n\n\nN. Shanmugham                                          .....  Appellants\n\n-Vs-\n\n1. Rathinam @ Rathinavelayudham (died)\n2. Ranganayaki\n3. Pushpaganthi\n4. Janardhanan\n5. Minor Rathinavel Kamarajan\n   (rep. by father and guardian\n   fourth respondent)\n6. Anandavalli\n7. Suvasavathy\n8. Pachavarnam\n9. Uma Parvady\n\n   (R-4 & R-6 to R-9 recorded as\n    L.Rs. of the deceased first\n    respondent; R-4 recorded as\n    L.R. Of the deceased second\n    respondent; and R-6 to R-9\n    brought on record as L.Rs. of\n    the deceased second respondent\n    as per the order of the Court\n    dt. 25.3.2003 made in CMP Nos.9229\n    to 9231 of 2001 by PSMJ & PSDJ)     ..  Respondents\n\n\nPRAYER :  Appeals against the judgment and decree  dated  12.12.1988  made  in\nO.S.  No.326 of 1987 on the file of the Sub-Court, Pondicherry.\n\n!For Appellants :  Mrs.  Hema Sampath\n\n^For Respondents :  Mr.  T.R.  Rajagopalan,\n                Senior Counsel for\n                Mr.  T.R.  Rajaraman (For R-4).\n\n:J U D G M E N T\n<\/pre>\n
P.SHANMUGAM, J.\n<\/p>\n
                Defendant is the appellant.  The suit for specific performance
\nwas decreed and the appeal is against this judgment and decree.\n<\/p>\n
        2.      The  parties  are described as per their rankings in the trial
\ncourt.\n<\/p>\n
        3.      The first plaintiff,  for  his  and  on  behalf  of  the  four
\nplaintiffs,  entered into an agreement dated 13.12.1984 for the purchase of an
\nextent of 20.40 acres of land for a consideration of Rs.3,57,500\/-.  A sum  of
\nRs.50,000\/- was  paid  as  advance  on  that  day.    As  per the terms of the
\nagreement, the defendant had to obtain, at his expense, Government  permission
\nto   sell   the   land,  income  tax  clearance  certificate  and  encumbrance
\ncertificate, within a period of one year from the date of the agreement.    It
\nwas  further  agreed  that  during  that  period, the defendant had to get the
\ntenants evicted at his expense and hand over possession of the property at the
\ntime of the sale.  In the event of  the  defendant’s  failure  to  get  vacant
\npossession  of the property, the agreement holder, namely the first plaintiff,
\nwas entitled  to  retain  a  sum  of  Rs.50,000\/-  out  of  the  balance  sale
\nconsideration and get the sale deed executed and registered.  If the defendant
\nfailed  to  evict  the  tenants  within a period of six months thereafter, the
\nplaintiff was entitled to deduct the expenses  from  the  retained  amount  of
\nRs.50,000\/- for  getting  the  tenants  evicted.   The plaintiff would have to
\nforego the advance amount of Rs.50,000\/- if he failed to take  the  sale  deed
\nwhile the  defendant  was  ready to fulfill his part of the contract.  In case
\nthe defendant failed on  his  part  to  give  effect  to  the  agreement,  the
\nplaintiff was  entitled  to  seek  the  remedy  of  specific performance.  The
\ndefendant,  in  the  meanwhile,  should  not  subject  the  property  to   any
\nencumbrance.   In  case  the  Government  refused  to  grant  permission,  the
\ndefendant had to return the advance amount of Rs.50,000\/- with interest at the
\nbank rates for fixed deposits.  While steps were being taken  to  comply  with
\nthe  conditions  of  the  agreement,  the  defendant received a further sum of
\nRs.25,000\/- on 16.11.19 85 and a supplementary agreement dated 26.12.1985  was
\nentered  into,  by  which  it was agreed to read both the agreements together.
\nUnder the second agreement, a further sum  of  Rs.32,500\/-  was  paid  to  the
\ndefendant,  taking the total sum paid towards consideration to Rs.1,07,50 0\/-.
\nAs per the supplementary agreement, it was agreed that after giving credit  to
\nRs.50,000\/-,  the remaining sale consideration of Rs.2,00,000\/- be retained by
\nthe first plaintiff to be paid with interest at the rate of 12% per  annum  on
\nthe date of execution of the sale deed.\n<\/p>\n
        4.      According  to the plaintiffs, while they were co-operating and
\nrendering all  assistance  to  the  defendant  in  obtaining  permission,  the
\ndefendant,  with  an ulterior motive, was delaying in furnishing the requisite
\ninformation to the competent authority.  Ultimately, he came  forward  with  a
\nletter  dated 4.2.1987 in which, while admitting the agreements, expressed his
\ninability to get the necessary permission from  the  competent  authority  and
\nrequested  the  plaintiffs  to  receive back the advance amount and cancel the
\nagreement.  The first plaintiff, in his  reply  dated  12.2.1987,  sought  the
\ncommunication or  the order of refusal by the competent authority.  Later, the
\ncommunication of the competent authority dated 3.3.1986,  which  was  received
\nlong ago,  was  disclosed.    The  defendant  was informed thereunder that the
\nrequest for permission could be considered only after filing the statement  of
\nland holding  in Form-I.  According to the plaintiffs, the defendant, in order
\nto avoid the agreement and with an ulterior motive to sell the  properties  to
\nthird  parties  for  a  higher  consideration,  was trying to set up a case of
\nrefusal by the competent authority.  According to him, he came  to  know  that
\nthe  defendant  had unilaterally addressed the competent authority without the
\nknowledge of the plaintiffs.   In  the  above  circumstances,  the  plaintiffs
\nissued  a  notice  dated 27.4.1987 calling upon the defendant to discharge the
\nobligations under the contract, for which the defendant ca  me  with  a  reply
\nthat  his  steps  to  get the permission could not succeed inspite of his best
\nefforts besides claiming that his  sons  were  also  having  a  share  in  the
\nproperty.   After finding that the defendant is trying to avoid and defeat the
\ncontract, the above suit came to be filed for a specific performance.\n<\/p>\n
        5.      The defendant did not dispute the execution of  the  agreement
\nand  receipt  of  the  advance  amount  totalling Rs.1,07,500\/- as well as the
\nvarious terms of the agreement.  According to him, he was unable to live up to
\nthe agreement since the Government did not grant the permission inspite of his
\nefforts to get the permission and to file the suit  for  getting  the  tenants
\nevicted.  He had alleged that while he was always ready and willing to perform
\nhis  part  of  the contract, it is only the first plaintiff who had delayed in
\nhanding over the affidavit to him to get the  necessary  clearance  under  the
\nUrban Land  Ceiling  Enactment.    In  the  light  of the communication of the
\ncompetent authority, he had no other alternative but to seek for  cancellation
\nof the  agreements.  He has further stated in his written statement that since
\nthe authorities concerned decided to take a portion of the land on the  ground
\nthat it was excess, he has submitted his objection and had also stated that he
\nhad  decided  to  sell the property in favour of his sons and daughters and he
\ntherefore withdrew all his applications seeking  permission  to  alienate  the
\nsuit property.    According  to him, for settling the lands in their favour, a
\nroad is required to reach their respective properties and  therefore,  he  had
\nset  apart an extent of 126.25 x 3.05 meters of land and public road, in which
\ncase the land would not come within the ceiling limit.  He has stated that  he
\nhad not  violated  the  terms and conditions of the agreement.  He has further
\npleaded that plaintiffs 2 to 5 are unnecessary parties to  the  suit  and  has
\ndenied  the  allegation of motive in not getting permission from the competent
\nauthority and also the allegation of sale to third parties.\n<\/p>\n
        6.      On the above  pleadings,  the  learned  Principal  Sub  Judge,
\nPondicherry has framed the following issues :-\n<\/p>\n
        (1)     Whether   the   plaintiffs  are  entitled  to  claim  specific
\nperformance of agreement?\n<\/p>\n
        (2)     Whether defendant is liable to deliver possession?
\n        (3)     Are the plaintiffs entitled for permanent injunction as prayed
\nfor?\n<\/p>\n
        (4)     Whether the agreements between plaintiff  and  defendant  have
\nbecome frustrated on account of act of state and pending A.S.?\n<\/p>\n
        (5)     Whether  proper  court  fee  is  paid  by  plaintiffs  for all
\nreliefs?\n<\/p>\n
        (6)     To what relief are the parties entitled?\n\n        7.      The fourth plaintiff had  examined  himself  as  P.W.1.    The\n<\/pre>\n
Tahsildar was  summoned  to  give  evidence  as P.W.2.  The defendant examined
\nhimself as D.W.1.  The trial court marked Exs.A.1 to A.12  on  behalf  of  the
\nplaintiffs  and Exs.B.1 to B.8 on behalf of the defendants, besides Exs.X.1 to
\nX.5 marked on the instructions of the court.  The learned Principal Sub Judge,
\nPondicherry answered all the issues in favour of the plaintiffs and granted  a
\ndecree.  The appeal is against this judgment and decree.\n<\/p>\n
        8.      Learned counsel  Mrs.  Hema Sampath appearing on behalf of the
\nappellant  submitted  that  the  contract  has  become  impossible  of   being
\nperformed.  In  the  light  of the Full Bench decision in GOPIRATHANAM P.  VS.
\nFERRODOUS ESTATE (PVT.) LTD.  [1999 (II) C.T.C.  181], the  decree  ought  not
\nhave been  granted.  According to her, the court below had failed to frame the
\nissue as to whether the plaintiffs were ready and  willing  to  perform  their
\npart  of  the contract and answer the same and the court below had also failed
\nto see that the  plaintiffs  had  not  issued  any  notice  calling  upon  the
\ndefendant to  execute  the  sale  deed inspite of the land ceiling order.  She
\nemphasized that as far as the defendant is concerned, but for his inability to
\nget the permission from the Government, he would have performed  his  part  of
\nthe contract.    Learned counsel further pleaded that when the defendant could
\nnot get the clearance, in order to save the  land  from  acquisition,  he  had
\ndecided  to  convey  the same to his children and had sought for withdrawal of
\nhis application seeking  permission  to  sell  the  land.    She  has  further
\nsubmitted  that  when the performance of a contract depended on the conditions
\ncontained thereunder, a specific  relief  cannot  be  granted  and  therefore,
\nprayed for setting aside the decree of the court below.\n<\/p>\n
        9.      Mr.  T.R.    Rajagopalan,  learned senior counsel appearing on
\nbehalf of the respondents, on the other hand, submitted that the appellant has
\ncome forward with an inconsistent case only to avoid the contract.  It is  not
\nthe case  of  the  appellant that he was holding excess land.  The case of the
\nappellant all through was that the holding comes within the ceiling limit  and
\nthe  filing of application under Section 2 6(1) of the Urban Land (Ceiling and
\nRegulation) Act, 1976 (Central Act 33 of 1976) pre-supposes that the lands are
\nwithin the ceiling limit.    According  to  him,  the  appellant  deliberately
\ndelayed the processing of the application initially and subsequently filed the
\napplication  and  did not communicate the order of the competent authority who
\ndid not reject the application, but only stipulated  consideration  after  the
\nfurnishing of  Form-I.   The appellant had preferred Writ Petition No.11620 of
\n1987 and this Court, by order dated 27.1.1997, set  aside  the  order  of  the<\/p>\n
competent  authority and remanded the matter and by that time, the Ceiling Act
\nwas repealed.  Hence, according to the learned senior counsel, there is no bar
\nfor the grant of the decree.\n<\/p>\n
        10.     We have heard the counsel and considered the matter carefully.\n<\/p>\n
        11.     The main point that arises for consideration in this appeal is
\nwhether the contract has become impossible of performance.\n<\/p>\n
        12.     The fact that  the  first  plaintiff  and  the  defendant  had
\nentered into an agreement dated 13.12.1984 and a supplementary agreement dated
\n26.12.1985 for the sale of the suit property is not in dispute.  The agreement
\ncontemplates  permission  from  the  competent  authority under the Urban Land
\n(Ceiling and Regulation) Act,  1976  and  other  conditions  like  income  tax
\nclearance and  vacating  the  tenants  from  the  premises.  The defendant had
\nobtained the income tax clearance and had also filed a suit for  vacating  the
\ntenants.   The  case of the appellant is that inspite of his strenuous efforts
\nto get the Government permission  under  the  Ceiling  Act,  his  request  was
\nnegatived  and as per the terms of the agreement, he had to return the advance
\nwith interest at the rate of bank deposit and therefore, he  called  upon  the
\nplaintiffs to cancel the agreement.\n<\/p>\n
        13.     Applications   were  made  by  the  first  plaintiff  and  the
\ndefendant in January, 1986.  They are marked as Exhibits X.1,  X.2,  X.3,  X.4
\nand   X.5  dated  6.1.1986,  17.1.1986,  13.1.1986,  27.1.1986  and  30.1.1986
\nrespectively.  These applications were returned by the letter dated  3.3.1986,
\nEx.E.7,  asking  the  defendant  to  file  statement  of  his  land  holdings.
\nThereafter, the defendant filed a statement, Ex.A.7 on 7.4.1 986 and  on  that
\nbasis,  the  notification  under Section 10(1) of the Act dated 17.10.1987 was
\nissued holding that there is an excess of 3 ares and 89 santhiar (389 sq.mts.)
\nin R.S.  No.283\/3 Part.  As against this  notification,  the  defendant  filed
\nWrit  Petition  No.11620 of 1987 and the same was disposed of by this court by
\nan order dated 27.1.199 7 and the matter was remanded back.\n<\/p>\n
        14.     The defendant had  filed  an  affidavit  dated  19.11.1987  in
\nsupport  of  the  writ petition, wherein he had taken a specific stand that he
\nowned 1780 sq.mts.  of vacant land and that the ceiling Act would  not  apply.
\nHe  had  pleaded in the affidavit that two of the four items were given to him
\nby his late father and that the remaining two items were acquired  by  him  in
\nhis wife’s  name  and  that an extent of 2087 sq.mts.  is used as agricultural
\nland.  Besides, he stated that he has got buildings covering an  area  of  100
\nsq.mts.   and  therefore,  that  part of the building and the land appurtenant
\nthereto ought to be exempted  from  the  holdings.    According  to  him,  the
\ndeclaration  of the competent authority in the order dated 10.3.1987 declaring
\n389 sq.mts.  as an excess land is ex facie illegal since they have  failed  to
\nconsider the  buildings  and the land.  Instead, only the vacant land has been
\ntaken into account.  He has also stated as follows :-\n<\/p>\n
        “In fact, the land in question is  agricultural  land.    There  is  a
\ncoconut  farm  on the land and as such, the land is liable to be excluded from
\nthe total land holding under the Urban Land Ceiling Act.   We  have  contended
\nthat  this  should  be  excluded,  but  this  aspect  has  not been taken into
\naccount.”\n<\/p>\n
A learned Judge of this court, by order dated 7.1.1997, disposed of  the  writ
\npetition  directing  the  Ceiling Authorities to consider the case whether the
\nlands come within the purview of the definition ‘ urban land’.  By  the  Urban
\nLand  (Ceiling  and Regulation) Repeal Ordinance 1999, the Urban Land (Ceiling
\nand Regulation) Act, 1976 had been repealed.  Section 3 of the Ordinance saves
\nsuch of those lands which were  deemed  to  have  been  vested  in  the  State
\nGovernment  under  Subsection  (3) of Section 10 of the principle Act, but the
\npossession of which has not been taken over by the State Government.   Section
\n4  says that all proceedings relating to any order made pending the same shall
\nabate.\n<\/p>\n
        15.     The  relevant  provisions  of  the  Urban  Land  (Ceiling  and
\nRegulation)  Act,  1976 (hereinafter referred to as the Act) can now be looked
\ninto for a better appreciation.  There is no bar for  transfer  of  the  lands
\nwithin the  ceiling  limit  as  per  Section  5  of  the Act.  If there is any
\ntransfer of vacant land by a person who held the land in excess of the ceiling
\nlimit, the extent of land so transferred shall also be taken into  account  in
\ncalculating  the  extent  of  vacant  land  held by such person and the excess
\nvacant land in relation to such person shall be selected  out  of  the  vacant
\nland held by him after such transfer and in case the entire excess vacant land
\ncannot  be  so  selected, the balance, or where no vacant is held by him after
\nthe transfer, the entire excess vacant land  shall  be  selected  out  of  the
\nvacant land  held  by  the  transferee.   Sub-section (2) bars transfer of the
\nexcess vacant land so selected.    Sub-section  (3)  of  Section  5  bars  the
\ntransfer  of  any land in excess of the ceiling limit until he has furnished a
\nstatement under Section 6 and a notification regarding the excess vacant  land
\nhad been  published.    Section  26  of the said Act contemplates notice to be
\ngiven before transfer of a vacant land within the  ceiling  limit.    On  such
\nnotice,  the  competent authority shall have the first option to purchase such
\nland and the said option shall have to be exercised within 60  days  from  the
\ndate  of  receipt  of  the notice, failing which it shall be presumed that the
\ncompetent authority has no intention to purchase such land  and  it  shall  be
\nlawful to  the  person  to  transfer  such  land  to whomsoever he liked.  The
\ndefinition of ‘ vacant land’ under Section 2  excludes  land  not  being  land
\nmainly used for the purpose of agriculture and also land on which construction
\nof a building is not permissible under the building regulations and in an area
\nwhere  there are building regulations, the land occupied by any land which has
\nbeen constructed and the land appurtenant to such building has to be excluded.
\nThe agreements were of the year 1984, whereas the Ceiling Act came into  force
\non  17.2.1976  and  returns  were  filed  or  were  pending on the date of the
\nagreements.   Therefore,  understandably,  the  parties  have  understood  and
\nproceeded  on  the basis that the land in question is within the ceiling limit
\nand that the said land will not attract the provisions of the  ceiling  limit.
\nThe contemplation of application under Section 26 of the Act pre-supposes that
\nthe lands  are  within  the  ceiling limit.  Assuming for the sake of argument
\nthat the defendant holds excess land, there is no absolute bar in transferring
\nsuch land.  Further, as against the order holding 389 sq.mts.  as excess,  the
\npetitioner had filed the writ petition, obtained a stay in W.M.P.  No.17008 of
\n1987  dated  23.11.1987  and  ultimately  got  the  matter  remanded for fresh
\nconsideration, the Ceiling Act itself having since been repealed.  As per  the
\nrepealing  Act,  insofar  as the lands which were not taken possession of, all
\nproceedings taken under the principle Act shall abate.\n<\/p>\n
        16.     Therefore,  the  plea  of  the  respondents  that   there   is
\nimpossibility   of performance  of the agreement has no substance.  Obviously,
\nthe said plea is taken as an after-thought.  From the facts, it is  seen  that
\nthe  defendant  had not applied for the permission immediaetly after the first
\nsale agreement dated 13.12.1984.  The application came to be filed only in the
\nyear 1986 and though the application was not rejected, it  was  returned  with
\nthe  endorsement that the defendant’s request for grant of clearance could not
\nbe considered as the land in transfer was covered by the  Urban  Land  Ceiling
\nAct.   However,  it was stated that his request would be considered only after
\nhis filing the statement of his land holding in Form-I.  P.W.2, the Tahsildar,
\nhas stated in his evidence that they have not rejected the application of  the
\ndefendant,  but  they  have  only  asked him to file the statement of his land
\nholding.  In the affidavit filed along with the notice under  Section  26,  he
\nhas  stated  that  the  vacant  land belongs to him and that he holds the land
\nwithin the ceiling  limit  as  laid  down  by  the  Urban  Land  (Ceiling  and
\nRegulation) Act,  1976.    The defendant, while calling upon the plaintiffs to
\ncancel the agreement by his notice dated 4.2.1987, has made a wrong  statement
\nthat  inspite  of continuous efforts, the Government had negatived his request
\nand had refused to accord permission.  Only after the plaintiffs  called  upon
\nthe defendant to produce the order refusing permission, the defendant sent the
\ncommunication  of the competent authority dated 3.3.1986 with his reply notice
\ndated 6.3.1987, nearly one year after the communication.    Therefore,  it  is
\nobvious  that  the defendant was keeping this communication to himself without<\/p>\n
taking further steps immediately.  While he  had  been  agitating  about  this
\nissue  before  this  court in the writ petition, he has chosen to withdraw the
\napplication filed seeking permission.\n<\/p>\n
        17.     The main defence of the appellant is based on the  Full  Bench
\ndecision in GOPIRATHANAM’s case referred to earlier.  Therefore, it has become
\nnecessary to go through the law enunciated in the Full Bench decision.\n<\/p>\n
        18.     The  Full  Bench,  in  the  said  case, was concerned with the
\nquestion of an agreement of sale in reference to  the  land  declared  excess.
\nThe  question referred to the Full Bench was whether there can be a decree for
\nspecific performance subject to certain conditions or subject to the grant  of
\nexemption.   The  referring  Bench did not agree with the view that courts, in
\npassing a decree for specific performance, cannot lend support to the  parties
\nto  enforce  the  agreement  so  as  to  defeat  the  purpose  of  the Act, in
\nparticular, Section 6 of the Tamil Nadu Urban Land  (Ceiling  and  Regulation)
\nAct,  1978  in  the  light  of  the judgment of the Supreme Court in JAMBU RAO
\nSATTAPPA KOCHERI VS.   NEMINATH  APPAYYA  HANAMANNAYYAR  [A.I.R.    1968  S.C.
\n1358].   The  Full Bench answered the question to the effect that a decree for
\nspecific performance of a contract cannot be granted if it violates Section  6
\nof the  Tamil  Nadu  Land Ceiling Act.  It was also held that Section 6 of the
\nsaid Act not  only  prohibits  a  completed  transfer,  but  also  a  proposed
\ntransfer.  Their lordships had taken the following view :\n<\/p>\n
        “We  also  hold  that  a decree for specific performance of a contract
\ncannot be granted conditionally upon the vendor satisfying certain  conditions
\nif it is not part of the agreement.”\n<\/p>\n
The  Full Bench distinguished the judgment of the Supreme Court in JAMBU RAO’s
\ncase referred on the ground that the Bombay Tenancy and Agricultural Lands Act
\nis entirely different from the Tamil Nadu Land Ceiling Act.\n<\/p>\n
        19.     After going through the judgment, we find that the decision of
\nthe Full Bench will not apply to  the  facts  of  the  present  case  for  the
\nfollowing reasons :\n<\/p>\n
        (1)     The  lands  under  the  contract in the case dealt with by the
\nFull Bench were admittedly in excess of the ceiling limit under the Tamil Nadu
\nAct, whereas it is not the case here.\n<\/p>\n
        (2)     The Full Bench distinguished the judgment of the Supreme Court
\nin JAMBU RAO’s case, referred  above,  since  there  was  no  prohibition  for
\ntransferring  the  land  under  the Bombay Tenancy and Agricultural Lands Act,
\nwhereas it is so under Section 6 of the Tamil Nadu Act.  Similar is  the  case
\non  hand  where  there  is  no  total  prohibition for transfer of the land as
\nalready stated earlier.\n<\/p>\n
        (3)     In the present case, the  parties  have  understood  that  the
\nlands  are  coming  within  the  ceiling  limit  and  proceeded on that basis.
\nFurther, there was stay of the declaration of a portion of land as excess  and
\nthe matter  was  on  remand.    The  repealing Act makes the whole proceedings
\nabated.  Therefore, there is no bar for granting the decree at any stage.  The
\nSupreme Court, in JAMBU RAO’s case, has categorically laid down the law to the
\nfollowing effect :\n<\/p>\n
        “An agreement to sell a land does not, under the Transfer of  Property
\nAct, create  any  interest,  in  the  land,  in  favour  of the purchaser.  By
\nagreeing to purchase the land, a person cannot be said in  law  to  hold  that
\nland.   It  is  only  when the land is conveyed to the purchaser that he holds
\nthat land.”\n<\/p>\n
        (4)     The Full Bench has also  exempted  the  grant  of  decree  for
\nspecific  performance  conditionally,  if  the  conditions  form  part  of the
\nagreement, which is the case in the case on hand.\n<\/p>\n
        20.     In BAIDOSABAI VS.   MATHURDAS  GOVIND  DAS  [1980  (3)  S.C.C.
\n545], the Supreme Court rejected the contention that the contract becomes void
\nas  soon  as the Bombay Tenancy of Agricultural Lands Act became applicable to
\nthe suit lands and that it could not be applied after the Act seized to revive
\nthe suit lands.  It was held that the defendant became entitled to demand that
\nthe property should be sold by way of public auction only when  the  plaintiff
\nobtains  possession of the property and that the Act will not be applicable to
\nthe lands in question and that there is no impediment in the defendant seeking
\nto enforce the contract.  The contention that the court cannot grant a  decree
\nto defeat  the  provisions of the Act cannot be sustained.  At any rate, as on
\ndate, the Act has been repealed and there is no impediment.\n<\/p>\n
        21.     The case of P.T.  MADAN SWARUP SHROTIA PUBLIC CHARITABLE TRUST
\nVS.  STATE OF U.P.  [A.I.R.  2000 S.C.  3145] is  one  where  the  proceedings
\nunder  the Urban Land Ceiling Act declaring the land as surplus was challenged
\nin appeal and on rejection of the appeal, the matter was taken up  before  the
\nHigh Court  and  that  too  was dismissed.  But, in the mean time, the Act had
\nbeen repealed and a petition was filed praying that  the  present  proceedings
\nhave abated.    The  Supreme  Court,  in  that  case, held that since there is
\nnothing on record to indicate that the State had  taken  possession  over  the
\nsurplus  land,  the  present  proceedings have to be abated under the repealed
\nAct.  In MANZOOR AHMED MAGRAY VS.  GHULAM HASSAN ARAM [1999 (7) S.C.C.   703],
\nwhile  construing  the  prohibition  contained under the J & K (Prohibition on
\nConversion of Lands and Alienation of Orchards) Act 1975,  the  Supreme  Court
\nheld that the prohibition on transfer of orchards is not absolute and that the
\nquestion  of  obtaining previous permission as contemplated would arise at the
\ntime of execution of the sale deed on the basis of  the  decree  for  specific
\nperformance.   The  section  does  not bar the maintainability of the suit and
\npermission can be obtained by filing a proper application after the decree  is
\npassed.\n<\/p>\n
        22.     In ABDUL RAHIM  VS.  TUFAN GAZI [A.I.R.  1928 CALCUTTA 584], a
\nDivision Bench of the Calcutta High Court has held that where  the  plaintiff,
\nby  his  conduct,  has  made it impossible for the court to give effect to the
\ncontract in its entirety, the court will not allow the specific performance of
\na part of that contract.  This was on the principle that a contract  for  sale
\nof  a property, in law, will generally be considered indivisible and the court
\nwill not, as a general rule, compel specific performance  of  a  part  of  the
\ncontract unless  it  can  execute the whole contract.  The Division Bench also
\nheld that it is true, there are exceptions to this rule which  may  justly  be
\nmade in  the  circumstances  of  a particular case.  It was found in that case
\nthat the plaintiffs, by their conduct, had made it impossible for the court to
\ngive effect to the contract in its entirety in the sense  that  the  defendant
\nfailed  to  perform  the  demands  in  accordance  with  the  requirements  of
\nMohammedan Law.  This judgment would not support the  case  of  the  appellant
\nherein.   On the contrary, the Division Bench recognized the exceptions to the
\nrule, and the agreement contemplated  permission  and  that  decree  could  be
\ngranted  subject  to such a permission or in respect of the land coming within
\nthe ceiling limit.  It is conduct of the defendant which created  an  apparent
\ninability to perform the contract.\n<\/p>\n
        23.     The  contention  of the defendant that he has become incapable
\nof performing the contract and therefore as per Section 16 of the Act a decree
\ncannot be enforced against him, has no force.  The judgment relied on  by  the
\ncounsel for  the  appellant in WILLIAM GRAHAM VS.  KRISHNA CHANDRA [1925 PRIVY
\nCOUNCIL 45] is of no assistance.  In that case, the Privy  Council  held  that
\ncourt  must  not  make  a new contract for the parties nor proceed merely on a
\nsurmise that the requirement of the Section  would  be  satisfied  if  further
\nenquiry were  allowed.  The Privy Council also took the view that the words of
\nthe Section, wide as they are, do not  authorize  the  court  to  take  action
\notherwise  than judicially and in particular, do not permit it to make for the
\nparties or to enforce upon them, a contract, which in substance, they have not
\nalready made for themselves.  The said view will not apply to the facts of the
\npresent case.  Neither  the  defendant  became  incapable  of  performing  the
\ncontract nor the court is to make a contract for the parties.  The question of<\/p>\n
making  a  contract  minus the excess area does not arise for consideration in
\nthis case since there was no excess and admittedly, the  Ceiling  Act  is  not
\nattracted and in any event, the proceedings having been abated.\n<\/p>\n
        24.     The  question  of readiness and willingness on the part of the
\nplaintiffs does not arise for consideration either, since it is not  the  case
\nof  the  defendant  that  the plaintiffs were not ready and willing to perform
\ntheir part of the agreement.   The  appellant  had  unilaterally  proposed  to
\ncancel  the  agreement  on  the  ground  that the Government had negatived his
\nrequest to accord permission.  Therefore, the trial court justifiably did  not
\nframe an  issue  or go into the said question.  On the other hand, the conduct
\nof the appellant shows that he had not  made  a  genuine  attempt  immediately
\nafter the  agreement and that he withdrew the application for permission.  The
\nappellant had admitted in his grounds of appeal that he had, with the sole aim
\nof saving his land from acquisition, wishes to give it to his children and not
\nto sell it to third parties.  The  inconsistent  stand  of  the  appellant  is
\nrevealed  by his filing the writ petition and obtaining a stay and at the same
\ntime, trying to convey the same to his children.\n<\/p>\n
        25.     For all the above reasons, we hold that the  judgment  of  the
\ncourt below  does  not  call for any interference.  The appeal fails and it is
\naccordingly dismissed.  However, there will be no order as to costs.\n<\/p>\n
(P.S.M., J.) (P.S.D., J.)<\/p>\n
ab<\/p>\n
Index :  Yes
\nInternet :  Yes<\/p>\n
To\n<\/p>\n
1.  The Sub-Court,
\nPondicherry
\n(with records, if any).\n<\/p>\n
2.  The Record Keeper,
\nV.R.  Section,
\nHigh Court, Chennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N. Shanmugham vs Rathinam @ Rathinavelayudham … on 4 April, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04\/04\/2003 CORAM The Hon’ble Mr. Justice P. SHANMUGAM and The Hon’ble Mrs. Justice PRABHA SRIDEVAN Appeal Suit No.153 of 1989 N. Shanmugham ….. Appellants -Vs- 1. Rathinam @ Rathinavelayudham (died) 2. Ranganayaki […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-34994","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN. 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