ERAMMA v. D. KALAPPA — 1990 DIGILAW 684 (KAR)

SHIVAPRAKASH, J. ( 1 ) THIS second appeal is presented by the plaintiff questioning the correctness of the judgment and decree made in r. a. No. 45/1978 on the file of the i additional civil judge, mysore, reversing the judgment and decree of the trial court in o. s. No. 422/75 on the file of the munsiff at hunsur. ( 2 ) THE facts of the case in brief are as follows:- the plaintiff filed the suit for specific performance under an agreement dated 3-7-1967 marked as exhibit p2 for reconveyance of the suit property which is an agricultural land measuring about 5 acres 37 guntas bearing survey No. 14 of koralahosahalli, kasaba hobli, periyapatna taluk. The plaintiff was the owner of the said land and she executed a registered sale deed on 3-7-1967 for a consideration of Rs. 1,000/- in favour of the defendant. According to the plaintiff she had continued in possession of the property agreeing to pay interest on the said sum of Rs. 1,000/- to the defendant on the understanding that the defendant should reconvey the property in her favour when the said sum of Rs. 1,000/- and interest thereon was paid to him. Accordingly, the defendant executed the agreement dated 3-7-1967, agreeing to reconvey the said property to the plaintiff on payment of Rs. 1,000/- and interest thereon. ( 3 ) THE defendant in his written statement admitted the sale transaction under sale deed dated 3-7-1967. However, he denied having executed the reconveyance deed. He also denied that there was any understanding between the plaintiff and the defendant that the plaintiff should continue in possession and pay interest on Rs. 1,000/- as averred by plaintiff. The defendant also disputed the plaintiffs assertion that she continued to be in possession for about two years after the execution of the sale deed, and that she paid interest to him. He also disputed that the possession of the land was given to him only after two years of the execution of the sale deed. According to the defendant, possession was delivered simultaneously with the execution of the sale deed. On the basis of the above pleadings the trial court framed the following issues:-"1. Whether the plaintiff proves that there was an understanding at the time of the sale deed dated 3-7-1967 that plaintiff should continue in possession of the suit land and to pay interest? 2. On the basis of the above pleadings the trial court framed the following issues:-"1. Whether the plaintiff proves that there was an understanding at the time of the sale deed dated 3-7-1967 that plaintiff should continue in possession of the suit land and to pay interest? 2. Whether the plaintiff proves that the defendant executed an agreement dated 3-7-1967 in favour of the plaintiff agreeing to sell the property to the plaintiff when Rs. 1,000/- and interest is paid? 3. Does the plaintiff proves in the sale deed executed by her the sy. No. Is wrongly stated as 16 instead of 14? 4. Does the plaintiff further proves plaintiff continued in possession of the suitland for 2 years after the sale deed and then delivered possession to the defendant? 5. Whether the plaintiff further provesthat she tendered Rs. 1,000/- to the defendant and he refused to execute the sale deed? 6. Whether the suit is not properlyvalued? 7. Whether the suit is barred by limitation? 8. To what relief the plaintiff is entitledand to what order?"the trial court on the basis of the pleadings and the evidence on record gave finding on all the issues in favour of the plaintiff and decreed the suit. ( 4 ) AGAINST the said judgment and decree of the trial court, the defendant preferred appeal. In appeal the appellate court affirmed the findings of the trial court on all issues but declined to grant the relief of specific performance against which this second appeal is presented by the plaintiff. ( 5 ) AT the time of admission of this appeal, this court formulated the following question of law for consideration. "whether on facts and circumstances of the case, the appellate court was justified in holding that the agreement for sale ex. P-2 is uncertain for want of stipulation as to the rate of interest payable and dismissing the suit solely on that ground?" ( 6 ) THE appellate court after reappreciating the entire evidence on record has held all the issues, in favour of the plaintiff and agreed with the findings of the trial court. However, on the question of enforcement of the agreement to reconvey dated 3-7-1967 marked as exhibit p-2 in the suit, the appellate court held that the same is unenforceable. On the said question the appellate court held as follows:-"21. However, on the question of enforcement of the agreement to reconvey dated 3-7-1967 marked as exhibit p-2 in the suit, the appellate court held that the same is unenforceable. On the said question the appellate court held as follows:-"21. The next point that will have to be considered is, whether the agreement is enforceable? It is seen that in ex. p. 2 the rate of interest which has to be paid by the plaintiff, if she wants reconveyance, has not been mentioned. Even the plaintiff and P. W. 1 do not state anything about the rate of interest. As such it is not possible to ascertain with any certainty the price which has to be paid by the plaintiff for taking the reconveyance. In an agreement of sale the price to be paid is an essential term and it must be an ascertained sum or a sum which is ascertainable. If the price is neither ascertained nor ascertainable, the agreement is unenforceable and is invalid under Section 29 of the Contract Act. In the present case, the price which the plaintiff has to pay to the defendant for reconveyance cannot be ascertained as the rate of interest is not stipulated, though it is stipulated that interest will have to be paid in addition to the sum of Rs. 1,000/ -. As such, this agreement is unenforceable. "section 29 of the Contract Act reads thus:"29. Agreements, the meaning of which is not certain, or capable of being made certain, are void. "the relevant portion of exhibit p-2 which is in kannada reads thus: ( 7 ) IN my opinion, the recitals in the reconveyance deed cannot be said to be uncertain. As regards the identity of the land there was dispute between the parties in so far as the survey number was concerned. However, at a later stage the parties have agreed that what was sold was survey No. 14 and not 16. Therefore, question of identity of the property conveyed under the sale deed ex. p-1 is certain. The consideration amount shown in the deed is Rs. 1,000/- and this is not in dispute. The only uncertainty, if at all, is regarding the rate of interest stipulated in the reconveyance deed ex. p-2. Therefore, question of identity of the property conveyed under the sale deed ex. p-1 is certain. The consideration amount shown in the deed is Rs. 1,000/- and this is not in dispute. The only uncertainty, if at all, is regarding the rate of interest stipulated in the reconveyance deed ex. p-2. In terms of the said deed, the defendant has to rcconvey the property in question in favour of the plaintiff on payment of the said consideration amount of Rs. 1,000/- and interest thereon. No doubt the rate of interest is not stipulated, but this by itself docs not render the reconveyance deed uncertain as to make it unenforceable. In the circumstances, the rate of interest has to be construed as reasonable interest taking into consideration the nature of the transaction between the parties. ( 8 ) THE fact, that the suit land has to be enjoyed by the defendant till such time as the plaintiff retains the money of Rs. 1,000/- might have persuaded the parties not to indicate the rate of interest because in lieu of interest the defendant was to enjoy the property during the subsistence of the transaction between the plaintiff and the defendant. This is what the appellate court said in this regard:"i must point out that under the agreement the plaintiff was given a right to repurchase the land without any time limit being fixed. As the value of the property has been appreciating it is quite possible that the parties intended that the defendant should get something more than the price paid by him if tjic plaintiff should seek reconveyance after lapse of some years. To fix up the increase that the defendant should get, the parties must have agreed that some interest has to be paid in addition to the sum of Rs. 1,000/ -. " ( 9 ) HAVING so held the appellate court could not have concluded that the agreement of reconveyance is unenforceable. ( 10 ) MR. C. v. nagesh, learned counsel for the respondent submitted that the defendant has denied the execution of the reconveyance deed. Both the courts below after detailed appreciation of the evidence on record have held, as a matter of fact, that the execution of the reconveyance deed is proved beyond doubt. The said question of fact, is not open for examination, in revision. ( 11 ) MR. Both the courts below after detailed appreciation of the evidence on record have held, as a matter of fact, that the execution of the reconveyance deed is proved beyond doubt. The said question of fact, is not open for examination, in revision. ( 11 ) MR. C. v. nagesh learned counsel for the respondent relied on the decision of the Supreme Court in Mayawanti v Kaushalya Devi, 1lr 1990 kar. 3298 in support of his submission that the agreement between the parties under the reconveyance deed is unenforceable because of uncertainty. In the said decision, while considering the Provisions of Section 9 of the Specific Relief Act, 1963 at para 19, this is what is stated:"19. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds we re ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded. " ( 12 ) I have held on the facts and circumstan-ces of the instant case that the stipulations and terms of the contract between the parties are certain and it cannot be said that the parties were not ad idem and therefore the agreement is enforceable. ( 13 ) IN view of the above , i hold that the agreement dated 3-7-1967 exccul ed by the defendant - respondent in favour of the plaintiff - appellant is enforceable. In the result, i make the following order: (1) the judgment and decree of the appellate court is set aside and the judgment and decree of the trial court is restored. (2) taking all circumstances into consideration, i consider it reasonable to award interest of 6% per annum on the principal sum of Rs. In the result, i make the following order: (1) the judgment and decree of the appellate court is set aside and the judgment and decree of the trial court is restored. (2) taking all circumstances into consideration, i consider it reasonable to award interest of 6% per annum on the principal sum of Rs. 1,000/- from 3-7-1967 (the date of reconveyance deed) to the date of filing of the suit o. s. No. 422/1975. (3) the plaintiff shall deposit the sum of Rs. 1,000/- with interest as indicated above in the trial court within three months from today. (4) the defendant shall execute the sale deed and deliver the possession of the property within two months after the deposit of the money by the plaintiff. In default on the part of the defendant in executing the sale deed, the court shall arrange to execute the sale deed. This appeal is allowed on the above terms. No costs. Appeal allowed. --- *** --- .