M. K. MARATTUKULAM v. HEMCHAND — 1988 DIGILAW 279 (KER)

Judgment :- 1. The 2nd defendant for self and as power-of-attorney-holder of defendants 2 to 5 entered into an agreement Ext. Al dated 23-5-1977 for sale of the suit property 1 acre 11 cents in extent to the plaintiff for a consideration of Rs. 60,000/-. The payment of advance Rs. 20,000/-is acknowledged in Ext. Al. As per the terms of the agreement the balance Rs. 40,000/- is to be paid and the sale transaction is to be completed within a period of two months. The property belonged to Kuncheria T. Marattukulam, father of defendants 1 to 4 and the husband of the 5th defendant. Ext. Al asserts that on the death of Kuncheria T. Marattukulam the property has devolved on defendants 1 to 5. The plaintiff issued notice Ext. A4 on 21-10-1977 demanding performance of the contract by the defendants. Exts. AS to A8 are subsequent notices for the same purpose. On failure of the defendants to execute the sale deed, the plaintiff filed the present suit for specific performance of the contract. The defendants raised various pleas in answer to the plaint. For the purpose of this appeal it is necessary to advert only to two of the contentions raised by the defendants viz , (1) that the time fixed for performance of the contract had expired before the plaintiff made a demand and hence the defendants are not bound to perform the contract, and (2) on the death of Kuncheria T. Marattukulam the property devolved on his wife and all his children including four daughters who are not parties to the agreement, and hence the defendants could not convey full title to the property as agreed to between the parties. The court below overruled all the contentions of the defendants and decreed specific performance of the contract directing defendants 1 to 5 to execute the sale deed in favour of the plaintiff on the plaintiff paying the balance consideration of Rs. 40,000/-within two months from the date of the decree. The 2nd defendant has appealed against this decree. 2. Counsel for the appellant submits that the defendants are not bound to execute the sale deed as the time fixed for completion of the transaction expired on 23-7-1977 and a demand for performance was made by Ext. A4 notice only on 21-10-1977. 40,000/-within two months from the date of the decree. The 2nd defendant has appealed against this decree. 2. Counsel for the appellant submits that the defendants are not bound to execute the sale deed as the time fixed for completion of the transaction expired on 23-7-1977 and a demand for performance was made by Ext. A4 notice only on 21-10-1977. It is well settled that time is not the essence of a contract for sale of land and an agreement can be enforced even after the time stipulated between the parties (vide Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005, and Gomathinayagam Pillai v. Palanisami, AIR 1967 SC 868). 3. The more formidable contention raised by learned counsel for the appellant is on point No. 2 stated above. Kuncberia died in 1974 and his assets devolved on his wife and all his children. The Travancore Christian Succession Act, 1072 stood repealed on the coming into force of the Part B States (Law) Act, 1951 and intestate succession to the estate of a deceased Indian Christian is governed by Chapter II of Part V of the Indian Succession Act, 1925. The daughters are also legal heirs of the deceased and defendants 1 to 5 are not competent to convey full title to the property in terms of the agreement Ext. Al. It is also contended that the plaintiff had not pleaded his willingness to accept an assignment of the share due to defendants 1 to 5 in terms of S.12 of the Specific Relief Act and no such relief can also be granted in the present suit. 4. It is true that intestate succession to the assets of a deceased Indian Christian dying after the commencement of the Part B States (Law) Act, 1951 is governed by Chapter II of Part V of the Indian Succession Act as held by the Supreme Court in Mary Roy and Others v. State of Kerala and Others (1986 KLT 508). The further question is whether a decree for specific performance can be passed against defendants 1 to 5 who had agreed to convey the property to the plaintiff. Counsel for the appellant relies on the decision in Balmukand v. Kamla Wati (AIR 1964 SC 1385) in support of the proposition that a decree cannot be granted for sale of even the share due to the executants of the agreement. Counsel for the appellant relies on the decision in Balmukand v. Kamla Wati (AIR 1964 SC 1385) in support of the proposition that a decree cannot be granted for sale of even the share due to the executants of the agreement. In the case before the Supreme Court the Kartha of a joint Hindu family agreed to convey joint family property to the plaintiff. It was found that the proposed conveyance was not for necessity or benefit and cannot be binding on the joint family. On that finding the prayer for specific performance was declined. It is in that context that the Supreme Court observed that for want of a claim by the plaintiff expressing his willingness to pay the entire consideration for obtaining a decree against the interests of the kartha in the property, no decree can be granted even in respect of the share due to the contracting party. Counsel relies also on the decision of a Division Bench of this court in Balakrishnan v. Kunjukrishnan 1981 KLT. 463: ILR. 1981 (2) Ker. 218) wherein it was held that in the absence of a specific plea, no relief can be granted under S.12 of the Specific Relief Act. In the case before the Division Bench there was an agreement for sale of 50 cents of land by the defendant to the plaintiff. The defendant had later sold 40 cents to strangers who were found to be bona fide purchasers for value without notice of the prior agreement. In those circumstances the Division Bench observed that the plaintiff can claim only the remaining 10 cents on satisfaction, of the conditions mentioned in S.12 of the Specific Relief Act. In the absence of pleading to that effect it was held that no decree can be granted directing the sale even of the 10 cents. 5. These decisions can have no application to the present case where the plaintiff does not seek to obtain a conveyance of the share, if any, due to the daughters of Kuncheria. who are not even parties to the suit. The plaintiff seeks enforcement of the contract binding on defendants 1 to 5 and the question is whether they are entitled to avoid the contract by setting up a plea of title of persons who are not parties to the suit. who are not even parties to the suit. The plaintiff seeks enforcement of the contract binding on defendants 1 to 5 and the question is whether they are entitled to avoid the contract by setting up a plea of title of persons who are not parties to the suit. A Full Bench of the Madras High Court in Baluswami Aiyar v. Lakshmana Aiyar (AIR 1921 Madras 172) stated at page 178. "Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract alleging grounds which under Hindu Law would bind their interests and enable the vendor to give a good title as against them and make them parties, it is difficult to see how the question as to the right of the contracting parties to convey any interest except his own can be avoided and a decree passed the effect of which will merely be to create a multiplicity of suits." In that case a suit was brought by certain plaintiffs to enforce specific performance of a contract to sell a bouse and ground made by defendant No.1 alone. The plaintiff claimed that defendant 1's son, defendant 2, who was not a party to the contract, was nevertheless bound by the agreement entered into by the father because he had consented to the contract and also because the sale was for the benefit of the family. These pleas were denied and the learned trial judge held that the pleas were not established and the suit was dismissed against the son. The question for decision was whether in such circumstances specific performance could be decreed against defendant 1 alone and, if it could be, on what terms. The learned judge's answer to the question was specific performance of the contract could not be granted so as to direct execution of a conveyance of the entire property. The question for decision was whether in such circumstances specific performance could be decreed against defendant 1 alone and, if it could be, on what terms. The learned judge's answer to the question was specific performance of the contract could not be granted so as to direct execution of a conveyance of the entire property. But it was open to the purchaser to get specific performance so far as the share of the vendor was concerned on payment of the consideration agreed upon without any abatement. It is in that context the Full Bench made the above observation. In the present case the plaintiff does not seek a conveyance of the share, if any, due to the daughters of Kuncheria. There is also no allegation in the plaint that the agreement sued on is binding on them. Under these circumstances the earlier part of the observation of the Full Bench quoted above would squarely apply to the present case. 6. After referring to the above decision of the Full Bench a Division Bench of the Madras High Court consisting of Rajamannar C.J. and Balakrishna Ayyar J. in Muni Samappa v. Gurunanjappa (AIR 1950 Mad. 90) held that when a person sues for specific performance of an agreement to sell property impleading only the executants of the agreement who are the only persons bound to carry out the agreement and the plaint does not make any reference to persons other than those who are parties to the agreement, there is no necessity to determine the question of the vendor's title and the fact that the title which the purchaser may acquire might be defeasible at the instance of third parties is not a ground for refusing specific performance if the purchaser is willing to take such title as the vendors had. In Palanisamy v. Komara Chettiar (AIR 1950 Madras 91) Krishnaswami Nayadu J. held that in a case where the plaintiff sues for specific performance of an agreement to sell, impleading only the vendors and without any allegation in the plaint that the agreement is binding on their sons the title of the vendors or the right of their sons to the properties agreed to be sold is not the question involved in the suit and therefore the sons of the vendors are not necessary parties to the suit. The learned judge stated at page 93: "The plaintiff-petitioner is willing to take such title as the vendors, that is. defendants 1 and 2 could pass in his favour. The learned Subordinate Judge states to avoid multiplicity of suits the addition of parties might be allowed. In an application under 0.1 R.10, Civil PC., the Court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the questions that are involved in the suit and an order for addition of parties should not be made merely with a view to avoid multiplicity of suits if otherwise their presence is not necessary for determining the real questions involved in the suit. In a simple suit for specific performance like the present one filed against the vendors, the sons of the vendors are not necessary parties." 7. Following the decisions in Baluswami Aiyar's case (AIR. 1921 Madras 172) and in Palaniswamy's case (AIR. 1950 Mad. 91), a Division Bench of the Andhra Pradesh High Court in Mir Abdul Hakeem Khan v. Abdul Mannan Khadri (AIR. 1972 Andhra Pradesh 178) held that in a suit for specific performance on the foot of an agreement to sell property, there is no need to determine the question of the vendor's title. It was accordingly held that the question whether the property involved in the suit belonged to a partnership to which the defendant was a partner or separately to the defendant ought not have been gone into by the trial court and that court was wrong in refusing specific performance to the purchaser on the ground that the vendor's title was defective. The same view is expressed by S.N. Modi J. in Deenanath v. Chunnilal (AIR. 1975 Rajasthan 69) where the learned judge observed at page 71: "In my opinion, the vendor cannot be permitted to set up a defence in a suit for specific performance brought by the purchaser that he had no title or bad defective title to the property which be bad agreed to sell. In support of my view I place reliance on Mir Abdul Hakeem Khan v. Abdul Mannan Khadri, AIR 1972 Andh. Pra.178; Baluswami Aiyar v. Lakshmana Aiyar, AIR 1921 Mad. 172 (FB) and Muni Samappa v. Gurunanjappa, AIR 1950 Mad 90." 8. In support of my view I place reliance on Mir Abdul Hakeem Khan v. Abdul Mannan Khadri, AIR 1972 Andh. Pra.178; Baluswami Aiyar v. Lakshmana Aiyar, AIR 1921 Mad. 172 (FB) and Muni Samappa v. Gurunanjappa, AIR 1950 Mad 90." 8. Whether the vendors had full title to the property agreed to be conveyed to the plaintiff is not a question properly arising for decision in the present suit for specific performance. If their title is defeasible at the instance of persons not parties to the suit, the purchaser will get only such title as the vendors themselves had in the property. It is not open to the vendors to set up title of third parties in defence to the suit for specific performance. We, therefore, hold that the court below was perfectly right in decreeing specific performance of the agreement Ext. AL The appeal fails and is dismissed, in the circumstances without any order as to costs. Dismissed.