K. Hutchi Gowder v. H. Bheema Gowder — 1959 DIGILAW 2 (MAD)

Subrahmanyam, J.- The plaintiff appeals from the judgment of the learned Subordinate Judge, Ottacamund, dated 31st December, 1954, in O.S. No. 226 of 1952, on his file. The plaintiff prayed for a decree directing the defendant to execute and register a deed of release or, in the alternative, an instrument of conveyance in respect of the defendant’s undivided 1/6th share in the property known as Wakefield Estate, Nilgiris. The Subordinate Judge dismissed the plaintiff’s suit. Hence the appeal. On 13th September, 1946, the plaintiff-defendant and four others entered into the agreement Exhibit A-1. The document states that each of those six persons owned an undivided 1/6th share in the Wakefield Estate. The defendant and the four others agreed under that document to sell each his undivided 1/6th share in the estate to the plaintiff in consideration of his paying to each of them Rs. 10,000. Rs. 1,000 was paid on the date of the agreement. Paragraph 3 of the agreement states: "The purchaser will pay the balance of the purchase money, viz., Rs. Nine Thousand only to each of the vendors on or before the 10th day of October, 1946 and on payment of the balance of the purchase money, each of the vendors will execute and register in favour of the purchaser or his nominee a proper and valid conveyance of their sixth undivided share in the aforesaid premises known as the Wakefield Estate subject to the liabilities hereinbefore mentioned and deliver possession of their share to the purchaser. The costs of stamp on the conveyance and registration charges and purchaser’s Solicitors fees will be borne by the purchaser. And the purchaser will pay and discharge the liability under the mortgage indenture and under the aforesaid promissory note for Rs. Fifty-nine thousand only and all other liabilities payable in respect of the said Wakefield Estate." The promissory note referred to in that paragraph is the note, which had been executed by all the six persons in favour of one Ricobthas Fathaimull &38; Company for Rs. Fifty-nine thousand. Paragraph 5 of the agreement is in these terms: " If the vendors should fail to execute and register the conveyance when called upon, purchaser will be either entitled to claim the refund of the deposit of Rs. One Thousand only from each of the vendors with interest at nine per cent. Fifty-nine thousand. Paragraph 5 of the agreement is in these terms: " If the vendors should fail to execute and register the conveyance when called upon, purchaser will be either entitled to claim the refund of the deposit of Rs. One Thousand only from each of the vendors with interest at nine per cent. per annum from date of payment till date of repayment or to specifically enforce the agreement against the vendors". The balance of Rs. 9,000 payable out of the price to each of the five vendors named in Exhibit A-1 was duly paid by the plaintiff on 10th October, 1946. Exhibit A-6 is the receipt granted by the defendant acknowledging receipt of Rs. 9,000. The defendant and the four other vendors did not immediately execute a sale deed in favour of the plaintiff but sent to him the letter Exhibit B-3, which is in these terms: We shall execute the conveyance in respect of our one-fifth share within thirty days from this date as soon as you have arranged to release us from our liability to Messrs. Ricobthas Fathaimull &38; Co. under the promissory note, dated 15th August, 1946, as you obtained back the receipts issued by us six persons to 19 persons for Rs. 9,500 each". The letter was signed by the defendant and three others on 10th October, 1946, and by the fifth vendor on 16th October, 1946. The plaintiff alleged in the plaint that in July, 1949, he and the vendors (defendant and the four others) agreed that, in the place of a deed of conveyance, each of the vendors would execute a deed of release, and that, in pursuance of that oral agreement, three of the vendors had executed release deeds and had had them duly registered and that the fourth vendor being dead his legal representatives had agreed to execute and get registered a deed of release. In regard to the defendant, the plaintiff alleged that he had executed a release deed Exhibit A-2 in favour of the plaintiff on 30th October, 1949. The release was, however, not registered. In regard to the defendant, the plaintiff alleged that he had executed a release deed Exhibit A-2 in favour of the plaintiff on 30th October, 1949. The release was, however, not registered. The plaintiff alleged that the defendant had failed to register the release deed executed by him and contended: "The plaintiff is entitled to enforce the agreement, dated 13th September, 1946, as subsequently modified between the parties by compelling the defendant to execute and register a proper release deed or at least to execute and register a proper conveyance in favour of the plaintiff". On those allegations, the plaintiff prayed for a decree directing the defendant to execute and register a proper release deed or, in the alternative, a proper conveyance of the defendant’s 1/6th share in the Wakefield Estate. The defendant admitted execution of the agreement, dated 13th September, 1946 and receipt of Rs. 10,000 the price payable to the defendant for his 1/6th share of the Estate. The defendant pleaded however that the plaintiff had not discharged the liabilities which, under paragraph 3 of the agreement, dated 13th September, 1946, he was bound to discharge, that that the defendant was not bound to execute any conveyance or release deed until those liabilities were discharged. The defendant denied that he had agreed in July, 1949, that he would execute a release deed instead of a sale deed. In regard to the release deed Exhibit A-2, the defendant pleaded that the date and month of the release deed filed in Court had been tampered with. He did not deny the genuineness of his signature found in that document. He pleaded that the suit to enforce the agreement of 1946 was barred by limitation. In regard to the alleged agreement to execute a release deed, the defendant pleaded that, even if true, the agreement had been performed by the execution of the release deed filed in Court and that the plaintiff was not entitled to ask for the execution of a fresh release deed. The defendant pleaded further that the agreement alleged to have been entered into in July, 1949, had, even if true, been superseded by the agreement executed by the plaintiff, on 29th November, 1949. The defendant pleaded further that the agreement alleged to have been entered into in July, 1949, had, even if true, been superseded by the agreement executed by the plaintiff, on 29th November, 1949. The release deed, dated 30th October, 1949, contains a clause: “the releasor hereby assures and declares that whenever called upon by the releasee, the releasor will do sign and execute deeds and writings for better securing the estate at the cost of the releasee in manner aforesaid”. During trial, a contention was raised in the lower Court on behalf of the plaintiff that, on that clause, the plaintiff was entitled to call upon the defendant to execute a deed of conveyance. The defendant demurred. The learned Subordinate Judge found that the agreement on the part of the plaintiff to discharge the liabilities mentioned in paragraph 3 of the agreement, dated 13th September, 1946, was not a condition precedent to the performance by the defendant of his obligation to execute a deed of conveyance ; that the agreement to execute a deed of conveyance had been modified in July, 1949, by an agreement to have a deed of release executed in the place of a deed of conveyance or sale ; that the release deed Exhibit A-2 was in fact executed by the defendant on 30th October, 1949, the date it bore, in performance of the agreement which had been entered into in July, 1949, to execute a deed of release in place of a deed of sale and that the agreement to execute a deed of conveyance or deed of sale had not been superseded by the agreement, dated 29th November, 1949. The learned Subordinate Judge held further that the suit, in so far as it sought to enforce the agreement of September, 1946, was barred by limitation, that the agreement of July, 1949, to execute a deed of release in the place of a deed of sale having been performed by the execution of Exhibit A-2, (the deed of release, dated 30th October, 1949), the agreement was not outstanding any longer for performance ; that the plaintiff having failed to present the document for compulsory registration and get it registered was not entitled to ask for the execution of a fresh deed of release and that the clause in the release deed that the defendant would, whenever called upon, sign and execute all deeds for better securing the Estate did not entitle the plaintiff to call on the defendant to execute a deed of conveyance. On those findings, the learned Subordinate Judge dismissed the plaintiff’s suit. The first question for decision is whether, under the terms of the agreement, Exhibit A-1, the plaintiff was bound to discharge the liability under the mortgage and the promissory note and other liabilities payable in respect of the estate (referred to in paragraph 3 of the agreement) before the plaintiff could call upon the defendant or any of the other four vendors to execute a conveyance, in respect of his undivided 1/6th share in the Estate. In paragraph 3 of the agreement, the plaintiff’s right to obtain a sale-deed is linked to his obligation to pay the price on or before 10th October, 1946. His obligation to discharge the mortgage promissory note and other liabilities is an independent obligation, which would give rise to a claim for damages in the event of the plaintiff not discharging those liabilities and the vendors or any of them being damnified thereby. Clause 3 of Exhibit A-1 says that, on the price being paid the vendors will execute and register in favour of the purchaser or his nominee a proper and valid conveyance ". Clause 5 of Exhibit A-1 says: " If the vendors should fail to execute and register the conveyance when called upon, the purChaser will be. .. Clause 3 of Exhibit A-1 says that, on the price being paid the vendors will execute and register in favour of the purchaser or his nominee a proper and valid conveyance ". Clause 5 of Exhibit A-1 says: " If the vendors should fail to execute and register the conveyance when called upon, the purChaser will be. .. .entitled......to specifically enforce the agreement against the vendors." The effect of these two clauses is that, on paying the price, the plaintiff would become entitled to call on the defendant to execute a sale-deed and, if the defendant failed to execute a sale-deed, when called upon, the plaintiff would become entitled specifically to enforce the agreement and obtain a sale-deed. The plainitff’s right to sue for specific performance would accrue on the defendant’s failure, after receipt of the price, to execute a sale-deed on being called upon to do so. Agreeing with the learned Subordinate Judge, we hold that the discharge of the mortgage and the promissory note and the other liabilities referred to in the last sentence of clause 3, of Exhibit A-1 was not integrally connected with the plaintiff’s right to ask for a sale-deed or the defendant’s liability to execute and register a sale-deed. The defendant’s liability to execute and register a sale-deed arose as soon as, after payment of the price, the plaintiff called upon the defendant to execute a sale-deed. After receiving on 10th October, 1946, the entire balance of the price payable under the agreement Exhibit A-1, the defendant wrote to the plaintiff the letter Exhibit B-3 in which he said that he would execute the conveyance in respect of his 1/6th share " within thirty days from this date as soon as you have arranged to release us from our liability to Messrs. Ricobthas Fathaimull &38; Co." The defendant (D.W. 2) does not say that, subsequent to the execution of the agreement Exhibit A-1, the plaintiff entered into a fresh agreement by which he bound himself not to ask for a sale-deed until the liabilities referred to in the last sentence of paragraph 3 of the agreement had been discharged by the plaintiff. Exhibit B-3 cannot therefore be read as proving a subsequent agreement between the plaintiff and the defendant in regard to the conditions to be fulfilled before the plaintiff could call upon the defendant to execute a sale-deed. Exhibit B-3 cannot therefore be read as proving a subsequent agreement between the plaintiff and the defendant in regard to the conditions to be fulfilled before the plaintiff could call upon the defendant to execute a sale-deed. Exhibit B-3 appears to have been sent by the defendant in the belief that, under the agreement Exhibit A-1, the plaintiff was not entitled to call for a sale-deed until he had discharged the debt due on the promissory note in favour of Messrs. Ricobthas Fathaimull &38; Co. That belief was unfounded. Therefore, the fact that the defendant wrote on 10th October, 1946, that he would execute a sale only after the promissory note had been discharged cannot affect the plaintiff’s right under Exhibit A-1 to demand a sale-deed as soon as he had paid the price. The next question for determination is whether the plaintiff and the defendant agreed in July, 1949, that, in the place of a conveyance, which under Exhibit A-1 the defendant had promised to execute, the defendant would execute a deed of release. A deed of release was actually executed by the defendant in favour of the plaintiff. The reason why a deed of release was executed instead of a conveyance is that one Sivarama Iyer, who had been a Revenue Inspector and who was a document writer, advised the parties that a release deed would be less expensive than a conveyance but would be equally effective and the parties accepted his advice. According to P.Ws. 1 and 2, Sivarama Iyer, gave that advice and all the five vendors including the defendant accepted the advice and agreed in July, 1949, to execute release deeds. Two of the five vendors executed the release deeds Exhibits A-3 and A-4 in August, 1949. P.W. 2 another of the vendors executed the release deed Exhibit A-5 in November, 1949. The fact that each of the vendors executed a release deed in the place of a conveyance renders the evidence of P.Ws. 1 and 2 probable, namely, that before August, 1949, there had been an agreement between all the vendors on the one hand and the plaintiff on the other that release deeds should be executed in the place of conveyance. The defendant denies that he agreed to execute a release deed. We accept the evidence of P.Ws. 1 and 2 probable, namely, that before August, 1949, there had been an agreement between all the vendors on the one hand and the plaintiff on the other that release deeds should be executed in the place of conveyance. The defendant denies that he agreed to execute a release deed. We accept the evidence of P.Ws. 1 and 2 and hold that the defendant and the four other vendors named in Exhibit A-1 agreed with the plaintiff in July, 1949, on the advice and in the presence of Sivarama Iyer, to execute release deeds in the place of conveyances. The agreement entered into in July, 1949, that release deeds would be executed modified, only on that point, the agreement Exhibit A-1. In every other respect,. Exhibit A-1 remained in full force and effect. After July, 1949, the agreement had to be given effect to with words “ deed of release ” substituted for the word “ conveyance ” . Otherwise the rights and liabilities under Exhibit A-1 remained unaffected. It appears to have been contended in the lower Court though that contention was not repeated at the hearing of the appeal, that the modification that a release deed would be executed in the place of a conveyance could not be given effect to because that was a modification in a written agreement made by an oral agreement. Proviso 4 to section 92 of the Evidence Act enacts that the existence of any distinct subsequent oral agreement to modify a contract, whose terms have been reduced to writing, may be proved, except in cases in which such contract is by law required to be in writing or has been registered according to the law in force for the time being as to the registration of documents. The agreement Exhibit A-1 being an, agreement to convey, though reduced to writing, is not required by law, to be in writing. The agreement was not registered under the Indian Registration Act. The agreement could therefore be validly modified by the oral agreement entered into between the parties in July, 1949. The next question for decision is whether the defendant executed the release deed Exhibit A-2 on 30th October, 1949. The defendant does not deny his signature to the document. He admits that he read the document before he signed it. The agreement could therefore be validly modified by the oral agreement entered into between the parties in July, 1949. The next question for decision is whether the defendant executed the release deed Exhibit A-2 on 30th October, 1949. The defendant does not deny his signature to the document. He admits that he read the document before he signed it. In the written statement, the defendant stated “ the date and month of the alleged release deed .... have been tampered with ”. He did not specify the month or the date when he executed the document. He suggested to the plaintiff in cross-examination that the month was corrected from September to October. He did not suggest that any alteration in the date (apart from the month) had been made. As D.W. 2, however, the defendant said that he signed Exhibit A-2 in January, 1949. That is also the evidence of his witness D.W. 3. The learned Subordinate Judge thinks that the document had been typed out on 30th January, 1949 and that, since the defendant signed the document on 30th October, 1949, the word “ January ” was erased and the word “ October ” substituted. It is not likely that the document was typed out in January, 1949, because the agreement to execute a release deed was entered into only in July, 1949. It is probable that this particular release deed and other release deeds were typed out in July. The probability also is that the space for typing the date and the month were left blank and were filled in at the time of the execution of each of the release deeds by the respective releasors. We accept the evidence of P.Ws. 1 and 2. We do not believe D.W. 2 or D.W. 3. We find that the defendant executed the release deed Exhibit A-2 on the date it bears namely 30th October, 1949. The release deed Exhibit A-2 has not been registered. The defendant delivered the document to the plaintiff after executing it. We have to fix the responsibility for its non-registration. The plaintiff could of course have presented the document in the office of the appropriate Registrar for registration. In that event, notice would have gone to the defendant. There is no reason to think that he would have denied registration. The defendant delivered the document to the plaintiff after executing it. We have to fix the responsibility for its non-registration. The plaintiff could of course have presented the document in the office of the appropriate Registrar for registration. In that event, notice would have gone to the defendant. There is no reason to think that he would have denied registration. If he denied registration, there would have been an enquiry and, if registration was eventually refused by the registration authorities, the plaintiff would have had to institute a suit under section 77 of the Registration Act. But the plaintiff did not present the document for registration. We have to consider whether the omission was wilful or due to negligence or whether the omission was due to causes for which the plaintiff cannot justly be held responsible. There is no reason to think that the plaintiff did not want to have the document registered. Therefore, wilful failure to present the document for registration may be ruled out. The question then is, whether the failure to have the document registered was due to negligence on the part of the plaintiff or due to causes for which he cannot justly be held responsible. In paragraph 7 of the plaint, the plaintiff alleges that the defendant has failed to register the release deed executed by him. In paragraph 13 of the written statement, the defendant pleads: " Having failed to get the said release deed compulsorily registered by pursuing the procedure known to law, the plaintiff cannot now file this suit." Under Exhibit A-1 the defendant promised " to execute and register in favour of the purchaser or his nominee a proper and valid conveyance ". No conveyance would be valid unless it was registered. The defendant undertook the obligation of having the conveyance, which he could execute, duly registered. That obligation would, under the agreement as modified in July, 1949, attach itself to the release deed. That obligation on the part of the defendant to have the conveyance registered was not discharged by handing the document over to the plaintiff. Since the defendant had expressly undertaken the duty of having the document registered, the defendant would, after handing the document over to the plaintiff, have to call upon him to present it for registration or to deliver it back to the defendant for being presented for registration. Since the defendant had expressly undertaken the duty of having the document registered, the defendant would, after handing the document over to the plaintiff, have to call upon him to present it for registration or to deliver it back to the defendant for being presented for registration. It is only if the plaintiff declined, on being so called upon, either to present the document for registration or to deliver it to the defendant that the defendant would be relieved of his obligation to have the document registered ; and not otherwise. The defendant does not say that he called on the plaintiff to present the document for registration or deliver the document to him (defendant) for being presented for registration. Therefore, the responsibility for non-registration on the specific promise embodied in Exhibit A-1 is that of the defendant and not that of the plaintiff. But let us assume that, by taking the document from the defendant, the plaintiff undertook responsibility for getting the document registered. That is to say, let us treat this as an ordinary case, where the vendor agrees to execute a conveyance, without specifically agreeing also to have the conveyance registered. Even in such a case the agreement would not be fully performed until the vendor has done all that he is required to do to have the document duly registered. This is because an agreement to execute a conveyance necessarily implies an agreement to execute a valid conveyance, that is to say, an agreement to have a conveyance executed, and, where it requires registration, to assist in such registration. Let us assume that the case before us is an ordinary case of that kind, where the vendor who has promised to convey immovable property executes a deed of conveyance and places it in the hands of the vendee. The plaintiff says as P.W. 1 that Exhibit P-1 could not be registered as the defendant evaded and did not come when asked to do so. In cross-examination on that point, he says: " I know that a document has to be registered within four months of its execution. I did not seek compulsorily registration as I thought he would execute another". In cross-examination on that point, he says: " I know that a document has to be registered within four months of its execution. I did not seek compulsorily registration as I thought he would execute another". "The evidence, in other words, is that the plaintiff was requesting the defendant from time to time to go to the Registrar’s Office and get the document registered, but that the defendant, on some ground or other, put the plaintiff off and that the plaintiff did not present the document for registration because the plaintiff believed that even if the time allowed for registration got past, the defendant would execute a fresh release deed and have it registered. The plaintiff, if his evidence be true, was willing to allow the defendant to have the document registered at his convenience -and believed that, if it was inconvenient for the defendant to have the document registered within the time allowed, the defendant would execute a fresh release deed and get it registered. If that evidence be accepted, it would follow that responsibility for non-registration is on the defendant and not on the plaintiff. The defendant as D.W. 2 says there was no demand to register the document. That is not probable at all. The plaintiff is bound in the usual course to have asked the defendant to go to the Registrar’s Office to have the document registered. We accept the plaintiff’s evidence and find that the document could not be registered as the defendant evaded and did not go to the Sub-Registrar’s Office when asked to do so and that the plaintiff did not present the document for registration because he believed in good faith that if the time for registration of that particular document expired, the defendant would execute another release deed and get it registered. We hold that the responsibility for failure to have the document registered is the defendant’s and not the plaintiff’s.