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2000 DIGILAW 1239 (MAD)

P. Subramanian Udayar v. Eswari

2000-12-05

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2000
Judgment : 1. This Appeal Suit No.637 of 1987 and Transfer Appeal No.1086 of 1987 arise out of a common judgment and decree dated 19.3.1987 made in O.S.Nos.501 of 1983 and 18 of 1984 respectively. O.S.No.501 of 1983 was preferred by the appellant herein for specific performance of the agreement dated 27.2.1982 and O.S.No.18 of 1984 was preferred by the respondents herein for declaration and possession of the very same property for which specific performance was prayed for by the appellant in the other suit. 2. The parties to the appeals are herein after referred to by their respective status as mentioned in the suit in O.S.No.501 of 1983. As such the appellant is the plaintiff and the respondents are defendants 1 to 5. 3. 2. The parties to the appeals are herein after referred to by their respective status as mentioned in the suit in O.S.No.501 of 1983. As such the appellant is the plaintiff and the respondents are defendants 1 to 5. 3. The plaintiff claims that his wife and the first defendant are cousin sisters, that the suit schedule property situated in S.F.No.508/2 of Komarapalayam, measuring to an extent of 2.00 acres came to the share of the first defendant, that the plaintiff was cultivating the suit lands as cultivating tenant, that to get rid of the plaintiff from the suit schedule property, a suit in O.S.No.639 of 1972 was filed by the defendants by setting up one Thiru D.Subramaniya, as though he was the cultivating tenant, that when that issue came up for consideration in W.P.3600 of 1974 in this Court, the plaintiff was directed to establish his right of tenancy in O.S.No.639 of 1972, that the first defendant, who subsequently got substituted as a second plaintiff in the said suit, allowed the suit to get dismissed for default, that thereafter, the plaintiff filed O.S.No. 422 of 1980 for a declaration, to declare the status of the plaintiff as cultivating tenant, that subsequently by virtue of the agreement, dated 27.2.1982, that suit was also not pressed by the plaintiff, that the sale price as per the agreement was fixed at a sum of Rs.50,000, that a sum of Rs.4,000 was paid as part performance of the agreement on the date of agreement itself, that it was also agreed to pay a further sum of Rs.6,000 within 15 days while the balance amount was to be paid within seven months time, that further payment of Rs.6,000 was also made by the plaintiff and continue to retain possession of the suit schedule property, that there was a reference to a will dated 2.4.1944, in the agreement, that by virtue of the recitals contained in the will under which certain Samaradanai rights were to be performed by the defendants from and out of income of the various properties, that since the plaintiff wanted to get clarified about these rights to be performed by the defendants vis-a-vis the income from the suit schedule property, he had to approach the power of attorney holder of the vendors who was also a leading member of the Bar at Trichy, that he was awaiting clarifications from the said power agent, that though the plaintiff received notice dated 18.9.1982 and 1.10.1982, as he was laid up with jaundice for some time and also approached the power agent for getting necessary clarifications about the possible incumbrance under the will dated 2.4.1944, that as the said power agent also assured the plaintiff that he would get necessary clearance from the Court by filing an application under the Indian Trust Act, the notice could not be replied, that the plaintiff was ready with the cash and he was ready and willing to get the sale deed executed, that as the plaintiff was awaiting clearance of title of suit properties and details of other properties of the defendants out of which Samaradanai rights were to be performed, some time was taken and ultimately, when the plaintiff came to know that the power agent of the defendants was not interested in selling the property, but was taking efforts to evict the plaintiff, the plaintiff was obliged to file the suit praying for decree for specific performance of the agreement dated 27.2.1982. 4. Inthe written statement filed in O.S.No.503 of 1983 as well as, as per the plaint averments contained in O.S.No. 18 of 1984, the defendants contended that the first defendant is the mother of defendants 2 to 5, that the defendants became entitled to suit property by virtue of the registered will dated 2.4.1944 executed by the father of the first defendant, that as per the terms of the said will, the first defendant was entitled to life interest, while defendants 2 to 5 are the vested remainders, that the power of attorney agent is none other than the husband of the first defendant and father of defendants 2 to 5, that the defendants have been in possession and enjoyment of the suit property in their own right and were also carrying on personal cultivation, that the plaintiff was never the lessee of the suit lands, that the plaintiff was put in possession only pursuant to the suit sale agreement dated 27.2.1982, that even if the plaintiff was a tenant of the suit property, by virtue of the suit sale agreement, the plaintiff ceased to be the tenant of the suit property, that as per the agreement dated 27.2.1982, time was the essence of the contract, that as per the agreement, an advance of Rs.4000 was paid by the plaintiff on the same date namely 27.2.1982, that he agreed to pay a further sum of Rs.6,000 within fifteen days from the date of agreement and the balance of Rs. 4,000 to be paid within a period of seven months i.e. on or before 30.9.1982, that possession was also delivered to the plaintiff at the time of the agreement, that though the plaintiff paid Rs.4000 and Rs.6,000 as per the terms of agreement, the defendant failed to pay the balance sum of Rs.40,000 inspite of several reminders by the defendants, that the plaintiff did not have necessary funds to pay the balance of sale consideration, that even when the defendants issued notice dated 18.9.1982 expressing their readiness and willingness to execute the sale deed in accordance with the contract, and called upon the plaintiff to pay the balance of sale consideration, and get the sale deed executed, there was no response from the plaintiff, that to the subsequent notice dated 1.10.1982 also, there was no proper response from the plaintiff, that pursuant to the agreement dated 27.2.1982, the plaintiff also withdrew O.S.No.1422 of 1980 pending on the file of the Sub ordinate Judge, Coimbatore, that the agreement was attested by the advocates representing the respective parties, that even after the breach committed by the plaintiff in the month of December, 1982, the power agent of the defendant contacted the plaintiff, he expressed his inability to complete the sale and agreed to voluntarily surrender possession after harvesting the standing crops, and that even after harvesting the standing crops, the plaintiff did not surrender the possession of the land. 5. It is alsocontended that a specific clause at the instance of the plaintiff was incorporated in the agreement to the effect that necessary recitals would be made in the sale deed, to the effect that the defendants would perform the 'Samaradanai' from other properties. Therefore according to the defendants, the stand of the plaintiff that he was waiting for the clarification relating to Samaradanai rights to be performed by the defendants was only a ruse to cover up his inability to perform his part of the contract as per the agreement. The various averments of the plaintiff were also rebutted by the defendants. It is claimed that the suit for possession was filed by the defendants in the Court of District Munsif, Coimbatore in O.S.No.2061 of 1983 which on subsequent transfer to the Court of Subordinate Judge was renumbered as O.S. No.18 of 1984. 6. The various averments of the plaintiff were also rebutted by the defendants. It is claimed that the suit for possession was filed by the defendants in the Court of District Munsif, Coimbatore in O.S.No.2061 of 1983 which on subsequent transfer to the Court of Subordinate Judge was renumbered as O.S. No.18 of 1984. 6. On the above stated pleadings, the trial Court framed five issues for determination in O.S.No.501 of 1983 and as many as 10 issues for determination in O.S.No. 18 of 1984. On issue No.1 in O.S.No.501 of 1983 as well as in O.S.No.18 of 1984 namely as to whether time was the essence of the contract, the trial Court held that by virtue of the clause contained in the agreement as well as based on Exs.B8 and B10, time was the essence of the contract. With regard to issue Nos. 2 and 3 in both the suits, namely as to whether the plaintiff was ready and willing to perform his part of the contract and as to whether he caused any violation and whether he committed any breach of the term of the contract, the trial Court held that the plaintiff failed to establish that he was ready and willing to perform his part of the contract and that by referring to the performance of Samaradanai rights and under the guise of getting a clearance relating to that, the plaintiff committed a breach of contract and therefore the said issues were held against the plaintiff. As regard the issue No.4 in O.S.No.501 of 1983 and issue No.9 in O.S.No.18 of 1984, namely as to whether the plaintiff was entitled for a decree for specific performance, the trial Court held that the same cannot be granted. On issue No.4 and 6 in O.S.No.18 of 1984 as to whether the Court had necessary jurisdiction to try the suit and as to whether the plaintiffs are cultivating tenants was to be countenanced, the trial Court held that the Civil Court was not competent to determine as to whether the plaintiff was a cultivating tenant, that the said issue has already been decided by the competent authorities under the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Right Act. 1969, that by virtue of Ex.A7 agreement the plaintiff was in possession of the suit schedule property. With regard to Issue Nos. 1969, that by virtue of Ex.A7 agreement the plaintiff was in possession of the suit schedule property. With regard to Issue Nos. 7 and 8 in O.S.No.18 of 1984 namely as to whether the plaintiff was entitled to possession of the suit schedule property and as to whether the defendants were entitled for mesne profits, if so, to what extent, the trial Court held that the defendants were entitled to seek for possession, that they were also entitled for mesne profits at the rate of Rs.4,500 per annum. As regards issue No.5 in O.S.No.18 of 1984 as to whether proper court fee had been paid, the trial Court held that inasmuch as the defendants had given an undertaking that they would pay necessary court fee as and when mesne profits is determined in the suit, and it was found that proper court fee had been paid by the defendants in the suit filed by them in O.S.No.18 of 1984. As regards the relief to be granted in O.S.No.18 of 1984, the suit was decreed as prayed for by the defendants in their suit in O.S.No.18 of 1984 with a further direction to the plaintiff to pay the mesne profits at the rate of Rs.4,500 per year from the date of suit till the date of handing over possession. The trial Court also granted two months time to the plaintiff to hand over possession. As regards issue Nos 1 to 5 in O.S.No.501 of 1983, the trial Court dismissed the said suit with costs. 7. The arguments of the learned counsel for the plaintiffs/appellants was two fold namely that in the first place according to the learned counsel, the plaintiff/appellant was always ready and willing to perform his part of the contract and since there was a bona fide cloud relating to the title of the suit property, the plaintiff/appellant made genuine efforts by approaching the power of attorney of the defendants who was a leading Senior Advocate of Trichy Bar and who also promised to get necessary clearance through the Court relating to the said cloud and it was in those circumstances, the plaintiff/appellant was waiting for the clearance of the title over the property though in all other respects he was ready and willing to perform his part of the contract. 8. 8. The learned counsel for the appellant/plaintiff also contended that as per the agreement whatever initial payment made by the plaintiff-appellant were duly paid within the respective dates and it was due to the delay caused at the instance of the power of attorney of the defendants the rest of the part of the contract stood postponed. The learned counsel therefore contended that the finding of the Court below holding that the plaintiff-appellant was not ready and willing to perform his part of the contract and that he committed a breach of the terms of the contract was therefore liable to be set aside. The alternative submission of the learned counsel for the appellant that even if the right of the plaintiff-appellant based on the agreement got vitiated, the resultant position would be that by virtue of the operation of Section 53-A of the Transfer of Property Act, the plaintiff-appellant would continue to retain his status as cultivating tenant and accordingly his rights as provided under the provisions of the Agricultural Records of Tenancy would automatically come into operation and that if the said position, is accepted then the question which ought to have been considered by the trial court would be whether the appellant was a cultivating tenant coming within the provisions of the said Act so as to entitle him for protection provided under the said enactment. The learned counsel would contend that by virtue of voluminous documentary evidence placed before the trial Court, the trial Court should have come to the one and only conclusion that the plaintiff-appellant is a cultivating tenant and by virtue of Section 6-A of the Act 25 of 1955, the civil Court would be barred from granting any relief to the defendants. 9. Mr.Rama Jagadeesan, learned counsel appearing for the defendant-respondent on the other hand contended that when once the suit filed by the plaintiff-appellant in O.S.1422 of 1980 was withdrawn pursuant to the agreement, the possession of the plaintiff-appellant in the so called status as a cultivating tenant got extinguished. 9. Mr.Rama Jagadeesan, learned counsel appearing for the defendant-respondent on the other hand contended that when once the suit filed by the plaintiff-appellant in O.S.1422 of 1980 was withdrawn pursuant to the agreement, the possession of the plaintiff-appellant in the so called status as a cultivating tenant got extinguished. In other words it was contended that by virtue of the withdrawal of the suit in O.S.No.1422 of 1980, the declaration by the competent authority under the provisions of the Tamil Nadu Land Records of Tenancy Right Act, 1969 holding that the plaintiff-appellant was not a cultivating tenant become final and conclusive, that the possession of the plaintiff-appellant of the suit lands was only pursuant to the agreement for sale made under Ex.A15 equivalent to Ex.B7, that the said possession cannot be construed as having restored the status of the plaintiff-appellant as a tenant under the relevant Act. The learned counsel therefore contended that the trial Court was fully justified in granting the relief of recovery of possession to the defendants. As regards the plaintiff-appellant s failure to perform his part of the contract, the learned counsel contended that after the initial payment of Rs.40,000 and 6,000, the plaintiff appellant never came forward to pay the balance amount inspite of two legal notices issued to him and in the circumstances, the appellant-plaintiff was never ready and willing to perform his part of the contract and therefore the findings of the Court below on those issues were fully justified. 10. On the above stated submissions made on behalf of the either parties, the following questions arise for consideration in this appeal namely:- (i) What was the status of the plaintiff-appellant vis-a-vis his possession in respect of the suit schedule property on the date of filing of the suits by either parties and subsequently? (ii) Whether the plaintiff-appellant committed any breach of the agreement made under Ex.A15 equivalent to Ex.B7 so as to disentitle him to seek for specific performance of the terms of the said agreement in respect of the suit schedule property? (iii) Whether the defendants were entitled for the recovery of possession as claimed in their suit in O.S.18 of 1984? (iv) To what relief the parties are entitled to? 11. (iii) Whether the defendants were entitled for the recovery of possession as claimed in their suit in O.S.18 of 1984? (iv) To what relief the parties are entitled to? 11. On the first issue namely as to the status of the plaintiff with regard to his possession of the suit schedule property, the learned counsel for the appellant contended that the plaintiff established his status as a cultivating tenant. The learned counsel by referring to Exs.A-2, A-6, A-7, A-3, A-5, A-9, A-10 and A-11, contended that those documents would prima facie show that the plaintiff was the cultivating tenant by virtue of the reference to the name of the plaintiff as recorded in various documents as having cultivated the suit schedule property situated in Survey No.508/2. The learned counsel, therefore, contended that if these documents had been considered by the trial Court, there was every scope for the trial Court to come to the only conclusion that the plaintiff was a cultivating tenant in respect of the suit schedule property. Based on the above said submission, the learned counsel further contended that the trial Court ought to have deliberated on that question and only after reaching a conclusion that the plaintiff was a cultivating tenant, the trial Court could have held that by virtue of Section 6 A of the Act 25 of 1955, the plaintiff could not be vacated except in accordance with the provisions contained in the said Act 25 of 1955. The learned counsel then contended that if for any reason the Court were to hold that the plaintiff committed breach of the terms of the agreement, then the plaintiff’s status would revert back to the position of a cultivating tenant. It was, therefore, contended that in such an event, the only mode by which the defendants could seek for eviction of the plaintiff would have been only under the provisions of the Act 25 of 1955 and not otherwise. 12. While considering the above said submission of the learned counsel for the plaintiff, the circumstances that preceded the said agreement dated 27.2.1982 will have to be necessarily gone into. The sequence of events preceding the said agreement would show that earlier, one D.Subramanian filed O.S.No.639 of 1972 and sought for protection claiming to be as a cultivating tenant, in which suit, the first defendant got herself impleaded as a second plaintiff. The sequence of events preceding the said agreement would show that earlier, one D.Subramanian filed O.S.No.639 of 1972 and sought for protection claiming to be as a cultivating tenant, in which suit, the first defendant got herself impleaded as a second plaintiff. At that point of time, the plaintiff filed W.P.No.3600 of 1974 in this Honourable Court which Writ Petition was disposed of by an order dated 16.3.1978 under Ex.A-12. As O.S.No.639 of 1972 relating to the tenancy of the suit schedule property was involved in that suit and as the same was pending on the date of the disposal of the Writ Petition in W.P.3600 of 1974, this Court held that the plaintiff could agitate his rights in the said suit. However, ultimately, the suit in O.S.No.639 of 1972 was dismissed for default. The plaintiff subsequently filed O.S.No.1422 of 1980 on 21.10.1980 for a declaration to declare that he was the cultivating tenant in respect of the suit schedule property as against the first defendant as well as one Thiru D.Subramaniam and also prayed for permanent injunction against them. While entering into the present agreement dated 27.2.1982, a specific clause was incorporated in the said agreement in and by which the plaintiff agreed to withdraw the said suit in O.S.No.1422 of 1980. Therefore, the withdrawal of the suit in O.S.No.1422 of 1980 was consciously done by the plaintiff apparently because of the comprehensive agreement entered into between the plaintiff and the defendants which provided the scope for the plaintiff to acquire the suit schedule property as a rightful purchaser. Nevertheless, for various reasons to be discussed, while considering the subsequent issues that arose for consideration in this appeal, the agreement got frustrated and the plaintiff could not purchase the suit schedule property. A reading of the various clauses in the agreement dated 27.2.1982 discloses that the plaintiff had with his eyes wide open given a goby to his original claim as a cultivating tenant of the suit schedule property. In fact, clause 6 of the said agreement makes it clear that in the event of the plaintiff failing to fulfil the terms of the agreement and purchase the property, it would be open to the defendants to get back possession and also claim for damages. It is also on record that pursuant to the said agreement, the plaintiff withdrew the suit in O.S.No.1422 of 1980. It is also on record that pursuant to the said agreement, the plaintiff withdrew the suit in O.S.No.1422 of 1980. It is also not in dispute that there was part-performance of the agreement inasmuch as the plaintiff paid the initial sums of Rs.4,000 and Rs.6,000 within the respective dates. After all these developments, if it is yet to be construed that by virtue of the nonperformance of the terms of the agreement for whatever reasons it may be, the plaintiff would revert back to the status of a cultivating tenant, in my opinion, would be a farfetched claim. 13. For considering the contention raised on behalf of the plaintiff, it will be worthwhile to extract Section 53-A of the Transfer of Property Act which reads as under : "Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of that contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." 14. In the first instance what is to be examined is as to by invoking Section 53-A of the Transfer of Property Act to the case on hand with particular reference to the facts and circumstances involved herein to what extent the claim of the plaintiff to revert back to his original status of a cultivating tenant could be accepted. To carry out the said exercise, the reference to the agreement Ex.A-15 and the subsequent conduct of the respective parties will have to be examined in detail. Ex.A-15 agreement requires a deeper consideration inasmuch as, for application of Section 53-A, the said document assumes prime importance. The said agreement was dated 27.2.1982 executed between the plaintiff and the defendants herein. It is an agreement for sale of the suit schedule property for a consideration of Rs.50,000. The terms of the agreement disclose that they have got a definite prescription. Both the plaintiff as well as the defendants are, parties to the document. While the plaintiff, himself has signed the said document, on behalf of the defendants, their power agent, who is none other than the husband of the first defendant and father of the other defendants, has signed. Therefore, the first part of Section 53-A of the Act is fully taken care of. Before going into the other aspect of Section 53-A vis-a-vis Ex.A-15, it will be worthwhile to refer to certain clauses, contained in the said document for the proper adjudication of this case. It contains only seven clauses. Therefore, those clauses can be extracted and it reads as under; 16. The very first clause in Ex.A.15 stipulates that the plaintiff should withdraw O.S.No.1422 of 1980 by virtue of the execution of Ex.A-15. It is relevant to note that as stipulated therein, the plaintiff had withdrawn the said O.S.No.1422 of 1980. Clause 2 of the agreement while confirming that the plaintiff paid a sum of Rs.4,000 on the date of the agreement to the defendants 2 to 6, stipulated that he should pay another some of Rs.6,000 within 15 days from the date of the agreement and the remaining sum of Rs.40,000 within 7 days from the date of agreement i.e., on or before 30.9.1982 and get the sale deed executed in his favour. The said clause contained in the agreement Ex.A-15 is also very clearly couched in no uncertain terms. The said clause contained in the agreement Ex.A-15 is also very clearly couched in no uncertain terms. There could be no ambiguity in understanding the said clause. The third clause in the agreement makes it clear that as per the said agreement Ex.A-15, the plaintiff can enjoy the schedule property in his capacity and status as the prospective purchaser of the property. Here again, in view of the parties, especially defendants 2 to 5, reconciling to the position inspective of the possession of the plaintiff even prior to the execution of Ex.A-15, make it clear that by virtue of the agreement, the possession subsequent to the agreement would in any way be only in his capacity and status as the purchaser as contained in the agreement. Clause 4 deals with the situation namely as to the samaradanai to be performed by defendants 2 to 6 by virtue of the Will dated 2.4.1944 only from and out of the income which they would derive from other properties, other than the property covered by the schedule to the agreement and that while executing the sale deed, there would be a specific clause to that effect in the sale deed. In other words, defendants 2 to 5 agreed that while executing the sale deed, sufficient safeguard would be made by the defendants 2 to 5 to the effect that the samaradanai rights to be performed under the Will dated 2.4.1944 would be carried out with the income derived from all other properties other than the suit schedule property. Clause 5 of the agreement would show that on the basis of clauses 1 to 4, if the plaintiff was willing to get the sale deed executed in his favour and if the defendants 2 to 5 fail to execute the sale deed, it would be open to the plaintiff to get the sale deed executed through a Court of law and also claim compensation from the defendants 2 to 5. Similarly, clause 6, provides that in the event of the defendants 2 to 5 being ready and willing to execute the sale deed and if it was at the instance of the plaintiff the same could not be executed, it would be open to the defendants 2 to 5 to retrieve the possession of the property from the plaintiff along with compensation. Clause 7 of the agreement ensured that both the parties retained a copy of the said agreement with each of them. 17. While applying Section 53-A of the Transfer of Property Act to Ex.A 15 and examine the position, I find that the terms of the agreement are clear and unambiguous. It is also shown that by virtue of the part-performance of the contract, the plaintiff’s possession either afresh or in continuation of his earlier possession was confirmed and clause 3 of the agreement makes it clear that the possession of the plaintiff was in his capacity and status as the prospective purchaser of the suit schedule property. To this extent, the application of Section 53-A to the transaction in question based on Ex.A-15 was satisfied. The only other question that remained to be considered was whether the transferee namely the plaintiff had performed his part of the contract or was willing to perform his part of the contract. At this point, the parties varied as to the plaintiff’s willingness to perform the contract inasmuch as it is not the case of the plaintiff that he had already performed his part of the contract. 18. This aspect of the case being in considerable controversy between the parties, the same requires a detailed examination. The plaintiff would claim that he was always ready and willing to perform his part of the contract and that he had necessary wherewithal to perform his part of the contract. In fact, what remains to be performed under Ex.A15 insofar as the plaintiff was concerned was that he had to pay the balance sale consideration of Rs.40,000 and get the sale deed executed while the defendants had to ensure that necessary clauses incorporated in the sale deed safeguarding the interest of the plaintiff in respect of the samaradanai rights to be performed by the defendants as per the will dated 2.4.1944. As regards the Question as to whether the plaintiff was ready and willing to perform his part of the contract, the fact remains that the plaintiff did not come forward to pay the balance sale consideration of Rs.40,000 till the date of filing of the suit by the defendants in O.S.No.18 of 1984 which was filed on 24.10.1983 (as referred to by the lower Court in page 16 paragraph 14 of its judgment), which was originally numbered as O.S.No.2061 of 1983 on the file of the District Munsif s Court, Coimbatore, and subsequently renumbered as O.S.No.18 of 1984 when it was transferred to the file of the Court of Subordinate Judge, Coimbatore. The plaintiff filed his suit in O.S. No. 501 of 1983 on 12.11.1983. 19. In this context, it would be relevant to refer to certain exhibits to thrash out as to who committed the breach in the performance of the terms of the agreement under Ex.A-15. Ex.B-8 dated 18.9.1982 is a letter written by the Power of Attorney of the defendants to the plaintiff pointing out that the plaintiff should have paid the balance consideration of Rs.40,000 before 30.9.1982, that the defendants were always ready and willing to execute the sale deed in the event of the plaintiff paying the balance sale consideration, that the plaintiff was repeatedly apprised of the above said fact and therefore, he should take necessary steps to pay the balance sale consideration and get the sale deed executed. Ex.B-10 is yet another communication from the Power of Attorney of the defendants pointing out that though the period for payment of the balance sale consideration of Rs.40,000 expired by 30.9.1982, he could still make the said payment before 15.10.1982 and get the sale deed executed in his favour. He also called upon the plaintiff to make necessary draft for the value of fts.40,000 and also keep the documents ready for execution. The plaintiff was warned that in the event of plaintiff failing to comply with the demand, he may have to forfeit the sum of Rs.10,000 paid earlier apart from exposing himself for payment of compensation for the breach of the contract. Significantly, though the plaintiff was in receipt of the notice dated 1.10.1982 under Ex.B-10, he did not come forward with any reply to the said notice setting out his stand or refuting the averments contained in Ex.B-10. 20. Significantly, though the plaintiff was in receipt of the notice dated 1.10.1982 under Ex.B-10, he did not come forward with any reply to the said notice setting out his stand or refuting the averments contained in Ex.B-10. 20. In Ex.A-16, dated 27.10.1983, the plaintiff issued a legal notice to the Power of Attorney of the defendants. In the said notice, the plaintiff took the stand for the first time that as there was a cloud by virtue of samaradanai rights to be performed under the Will dated 2.4.1944 and since the Power of Attorney holder of the defendants agreed to perfect the title by resorting to Court proceedings, he was awaiting clearance from the said Power of Attorney and that it was in those circumstances, the balance sale consideration could not be paid to enable him to get the sale deed executed in his favour. It transpires that as on 27.10.1983 when the said legal notice Ex.A-16 came to be issued, the defendants had already filed the suit for possession in Munsif's Court. Coimbatore as disclosed in the said exhibit itself. It was only thereafter, the plaintiff came forward with the suit in O.S.No.501 of 1983 on 12.11.1983. In fact, to Ex.A-16, the Power of Attorney holder sent a communication dated 29.10.1983 informing the plaintiff’s counsel that reply notice would follow and a detailed reply notice was sent on behalf of the defendants under Ex.B-23 on 24.11.1983. Nevertheless, from the records, it appears that the plaintiff without waiting for any reply from the defendants, filed the suit on 12.11.1983 itself for specific performance. The various averments and allegations made by the plaintiff in his notice dated 27.10.1983 was refuted by the defendants in their reply notice dated 24.11.1983. It was also mentioned therein that the copy of the Will was obtained by him some years back. 21. In the plaint filed in O.S.No.501 of 1983. The various averments and allegations made by the plaintiff in his notice dated 27.10.1983 was refuted by the defendants in their reply notice dated 24.11.1983. It was also mentioned therein that the copy of the Will was obtained by him some years back. 21. In the plaint filed in O.S.No.501 of 1983. the plaintiff came forward with an explanation that after he received the notice dated 18.9.1582, he was laid up with jaundice and thereafter he received the subsequent notice dated 1.10.1982 also, that he went to Trichy to meet the Power of Attorney holder of the defendants along with sufficient funds to finalise the matter, that when he referred to the said Power of Attorney holder about the plausible encumbrance due to the performance of samaradanai rights, the said Power of Attorney assured that he would get necessary directions from the Court by filing an application under the Indian Trusts Act, that trusting the words of the said Power of Attorney holder, he returned back to Coimbatore, that once again, he went to Trichy after six months and met the Power of Attorney holder to find out the progress made by him, that he was asked to wait for some more time and it was in those circumstances, the sale could not be concluded while he was always ready and willing to perform his part of the contract. 22. 22. In his evidence, the plaintiff would state that Ex.A-15 was prepared with the assistance of his advocate Mr.Maruda Muthu, that his advocate Mr.Maruda Muthu has also witnessed the said document, that clause 3 of Ex.A-15 was read over to him, that he was not aware of the correctness or otherwise of the various terms contained in Ex.B7 equivalent to Ex.A-15 agreement, that he signed the agreement on the footing that the terms of the agreement were explained to him in detail by the advocate, that after getting back home, he neither read the agreement nor shown it to anybody else, that only after seven months of the agreement, he understood as to what were all the rights to be performed by him as well as by the Power of Attorney holder, that at that point of time, he had one month's time to perform his part of the contract, that he received notice sent by the Power of Attorney holder on 10.9.1982 under Ex.B-9 that he received Ex.B-10 dated 1.10.1982 as per Ex.B-11, that though the said notice was in Tamil stating that he should get the sale deed executed before 30.9.1982, he did not read the said letter, that he had the assistance of four or five advocates in Coimbatore, that by the time Ex.B-8 was issued, he had ten years experience in Court matters, that he was under the impression that he could show Ex.B-8 to the Power of Attorney holder himself and it was with that impression, he did not go through the said letter, that admittedly, he did not send any reply to Exs.B-8- and B-10, that after receipt of Ex.B-10, though he developed some doubts with regard to the transaction, he did not think it fit to consult any lawyer, that he came to know about the existence of the Will for the first time only after the filing of the suit in O.S.18 of 1984 (O.S.No. 2061 of 1983 in the Court of District Munsif), that he was not aware of the Will dated 2.4.1944 at the time of execution of the agreement, that he was not aware of the reference about the Will in Ex.B-7, that only after getting the copy of the Will, he came to know that there were certain defects in getting the sale deed executed, that he did not consult any advocate as to what is the nature of the impediment by virtue of the Will in getting the sale deed executed, that even going by the agreement, he was put back to by only one acre in view of certain clauses contained in the Will and not the entire two acres. 23. A reading of the above stated evidence on record both oral and documentary discloses that the plaintiff has not come to Court with clean hands. There appears to be no truth in any of the averments or the stand taken by the plaintiff. Without going into the controversy as to whether time was the essence of the contract, it is necessary to find out the application of Section 53-A as to whether the transferee was willing to perform his part of the contract. While analysing the evidence on record, one can come to a safe conclusion that the plaintiff was never willing to perform his part of the contract. On the other hand, he was only attempting to postpone the execution of the sale deed under some false pretexts. The stand of the plaintiff that he was not aware of the terms of the contract is astounding. Admittedly, Ex.A-15 was drafted with the assistance of the advocates for both the plaintiff as well as the defendants. It is also admitted that the respective advocates acted as witnesses to the said exhibit. It is also in evidence that the plaintiff signed the agreement because the agreement was explained to him by his advocate. In the above stated circumstances, it is too late in the day for the plaintiff to plead that he was not aware of the various terms contained in the agreement Ex.A-15. 24. When I reach the said conclusion, the next Question would be whether there was any justifiable reason for the plaintiff in not coming forward to perform his part of the contract by paying the balance sale consideration of Rs.40,000. The plaintiff was clearly put on notice under Exs.B-8 and B-10 about his failure in not paying the balance sale consideration within the stipulated time as provided in the agreement Ex.A-15. Admittedly, both Exs.B-8 and B-10 were not replied to by the plaintiff. The only explanation given by the plaintiff is that after receipt of the above said notices, he met the Power of Attorney holder of the defendants in person at Trichy and wanted him to clear the cloud cast on the performance of samaradanai rights to, vis-a-vis the suit schedule property by the defendants. Except the ipsi dixit statement of the plaintiff, there is no other supporting evidence to believe his statement. Except the ipsi dixit statement of the plaintiff, there is no other supporting evidence to believe his statement. On the other hand, a reading of Ex.A-15 discloses that a specific reference was made to the Will dated 2.4.1944 in clause 4 of the said agreement. When the plaintiff had the assistance of his lawyer, it is quite unbelievable that in spite of the said state of affairs as on the date of the agreement, still, the plaintiff developed a serious doubt as to the title to the suit schedule property after the execution of Ex.A-15 and after part-performance of the same by paying a sum of Rs.10,000 towards advance. 25. The contention of the plaintiff that he did not have the details about the samaradanai rights to be performed under the Will dated 2.4.1944 is purely an afterthought. Clause 4 of the agreement itself specifically refers to the samaradanai rights to be performed under the Will dated 2.4.1944 and it was also fully safeguarded by stating that the defendants would perform whatever samaradanai rights, as per the Will dated 2.4.1944 from and out of the income to be derived from various other properties other than the suit schedule property. It was also agreed to by the defendants that specific clause to that effect would be made in the sale deed to be executed by the defendants in favour of the plaintiff. Therefore, in spite of such specific reference to the so called samaradanai rights and the safeguards agreed to be made, the plaintiff's contention that he developed a doubt about the said rights to be performed and on that basis, there was a scope for doubting the title to the suit schedule property was purely a self-serving statement and had been ingeniously developed by the plaintiff in order to circumvent and got over his indifference shown in the matter of performing his part of the contract pursuant to the agreement Ex.A-15. In such circumstances, the one and only conclusion that could be reached in this case is that the plaintiff miserably failed to establish that he was always ready and willing to perform his part of the contract. In such circumstances, the one and only conclusion that could be reached in this case is that the plaintiff miserably failed to establish that he was always ready and willing to perform his part of the contract. Therefore, the plaintiff is not entitled for the protection contained in the other part of the provisions contained in Section 53-A debarring the transferor from enforcing any right in respect of the property which was put in the possession of the plaintiff only under the Agreement Ex .A. 15. In any event, under clause 6 of the agreement Ex.A-15, the plaintiff having failed to perform his part of the contract, the defendants are entitled to retrieve possession of the suit schedule property apart from claiming compensation from the plaintiff. I therefore hold that by applying Section 53-A of the Transfer of Property Act, the status of the plaintiff in so far as his possession was concerned was in his capacity as a prospective purchaser and therefore there is no scope for holding that his status would revert back to that of a cultivating tenant as claimed by him. 26. The learned counsel for the defendants, relied upon Chinna Thevar v. Gnanaprakasi Ammal and another, 1978 (2) MLJ 535 where an identical question came up for consideration and His Lordship Mr.Justice S.Surya Murthy following an earlier judgment of His Lordship Mr.Justice Ganapatia Pillai in the judgment reported in Annamalai Goundan vs. Venkatasamy Naidu and others, 1959 (1) MLJ 301 clearly held that "the Question whether this defence would be open in the proceedings for eviction under the Madras Cultivating Tenants Protection Act is really besides the point, because the moment possession is taken or continued under the contract of sale, the original relationship of landlord and the tenant ceases to exist and the landlord cannot take advantage of the Madras Cultivating Tenants Protection Act to file an application for eviction ". The learned Judge also held in para 8 " I also find that even in proceedings instituted under the Act for eviction, the tenant is entitled to hold the agreement in his favour as a shield in defence to the action by the landlord." It was a converse case where irrespective of the agreement for sale when the landlord by virtue of which, the transferee was put in possession and when the transferor resorted to eviction proceedings under the Madras Cultivating Tenants Protection Act, the learned Judge was pleased to hold that by virtue of operation of Section 53-A and the transferee having performed his part of the contract, the possession of a the transferee was traceable to the agreement alone and therefore, the relationship of the landlord and the tenant which was in existence prior to the agreement ceased and thereby there was no scope for invoking the provisions of the Madras City Tenants Protection Act. 27. The learned counsel for the plaintiff relied upon G. Appalaswamy v. B. Vengataramanayya, AIR 1984 S.C.1728 for the proposition that there can be no merger of a lease and mortgage even if the two transactions are in respect of the same property. While answering the Question as to whether upon redemption of usufructuary mortgage, a tenant mortgagee could be directed to deliver actual or physical possession of the mortgaged property to the lessor/mortgagor. Their Lordships held that the same would depend upon whether there was an implied surrender of the lessees rights when the usufructuary mortgage was executed in his favour by the lessor/mortgagor. Then again it was indicated that it would depend upon what was the intention of the parties at the time of execution of the mortgage deed in favour of the sitting tenant which is to be discovered from the terms and conditions of the mortgage transactions in the light of the surrounding circumstances of the case. Their Lordships were of the view that it all depended upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee's rights or not and only if an implied surrender of lessee s rights could be inferred, then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. The transaction between the parties over a mortgage in respect of a property which, is already in possession of the mortgagee cannot be equated to the transaction of a property which is claimed to be in possession of the transferee in his capacity as a tenant. As held by the Hon'ble Supreme Court, there could not be a merger of the lease of the mortgage even where the two transactions are in respect of the same property. On the other hand, there is every scope for merger of a lease and proposed sale of particular property inasmuch as fundamentally the transaction namely a sale is distinguishable from mortgage. 28. In my opinion, the judgment reported in G. Appalaswamy v. B. Vengataramanayya, AIR 1984 S.C.1728 holding that there could be no merger will have no application at all to a transaction namely an agreement for sale of an immovable property. It is distinguishable because rights and pitfalls in the case of an agreement for sale will be quite different from the one that would be involved in the case of mortgage vis-a-vis existing lease in respect of the same property. In the case of mortgage, there would be no scope for the mortgagee as against the status of a transferee to aspire for the possession of the property as a rightful owner whatever be the default committed by the lessor/mortgagor, whereas in the case of an agreement for sale, the position is entirely different. In the event of the vendor committing default irrespective of the various terms contained in the agreement for sale, then the prospective purchaser would be entitled, as a matter of right, to seek for the execution of a sale in his favour by resorting to appropriate relief in the form of suit for specific performance, which would not be available to the mortgagee in the case of the former. In the case of agreement for sale. in the event of the purchaser namely the transferee fulfilling his part of the performance of the contract would be fully protected by the provisions contained under Section 53-A of the Transfer of Property Act. In the case of agreement for sale. in the event of the purchaser namely the transferee fulfilling his part of the performance of the contract would be fully protected by the provisions contained under Section 53-A of the Transfer of Property Act. In any event, even in the judgment reported in G. Appalaswamy v. B. Vengataramanayya, AIR 1984 S.C. 1728 , Their Lordships held that even in respect of the mortgage, the lessee s rights would depend upon the intention of the parties at the time of execution of the mortgage deed as could be seen from the terms and conditions of the mortgage transaction in the light of the surrounding circumstances of the case. Their Lordships were of the view that if an implied surrender of lessee's rights could be inferred from the terms of the deed, the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise and therefore, in the case of a mortgage of a property which was already covered by a lease, there would still be scope for redemption of the property if the terms of the mortgage agreement impliedly provide for it. Such being the case, under Ex.A-15, when under clause 3 the possession of the plaintiff was stated to be pursuant to the agreement of sale and the socalled tenancy rights as claimed by the plaintiff having been not crystalised in the form of an enforceable right as a cultivating tenant having the protection of the relevant laws. It could only be Inferred that the possession of the plaintiff on and after Ex.A-15 could be characterized only as that of a transferee and not that of a cultivating tenant as claimed by him. In such circumstances, the plaintiff, as found by the Court below and which finding is fully supported by the evidence on record, having failed to perform his part of the contract and thereby committed a breach of the agreement Ex.A-15, has rendered himself liable to restore possession of the defendants by virtue of clause 6 of the agreement Ex.A-15. Consequently, the plaintiff was also liable to pay the mesne profits at the rate which it was directed to be paid by the Court below. 29. The leaned counsel for the plaintiff also relied upon the judgment reported in Ranganayaki Ammal v. Managiri Venkataraman, 1994 TLNJ 20. Consequently, the plaintiff was also liable to pay the mesne profits at the rate which it was directed to be paid by the Court below. 29. The leaned counsel for the plaintiff also relied upon the judgment reported in Ranganayaki Ammal v. Managiri Venkataraman, 1994 TLNJ 20. In the said case, the plea put forward by the petitioner was that when once an agreement of sale came into being between the landlord and the tenant, by virtue of the operation of Section 53(A) of the Transfer of Property Act. the status as a landlord and tenant would automatically cease and that thereafter there would be no scope for the owner of the property to seek for eviction under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. While dealing with such a contention raised, the learned Judge found that there was no agreement as claimed by the petitioner so as to hold that the obligation of the petitioner to pay the rents came to an end and that thereafter the petitioner should be recorded as having continued to remain in possession free from the obligation to pay the rent to the landlord. The learned Judge by applying the judgment of the Hon'ble Supreme Court reported in Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989 has held that in the absence of Independent material to show that possession of the premises by the petitioner after particular date was in part performance of the agreement of sale it would follow that the possession continued as before as that of a tenant with the obligation to pay the rents in respect of the premises. Therefore a close scrutiny of the facts involved in that case disclose that there was a very serious controversy about the very existence of agreement for sale. In such circumstances, the learned Judge was pleased to hold that the petitioner in that case was not entitled to claim the benefit of part performance as provided under Section 53 (A) of the Transfer of Property Act. By no stretch of imagination, the conclusion arrived at in that case could be imparted to the facts of the case on hand to hold that the possession of the plaintiff should be restored to the position of a cultivating tenant as claimed by him. By no stretch of imagination, the conclusion arrived at in that case could be imparted to the facts of the case on hand to hold that the possession of the plaintiff should be restored to the position of a cultivating tenant as claimed by him. Having regard to the facts involved in this case, the said judgment is not applicable and therefore, the same is not helpful to the plaintiff. Similarly, in the Jessie Thavamani v. Liakath Basha, 1996 (1) CTC 398 : 1996 TNLJ 55 which also arose under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, the whole claim was based upon a receipt which evidenced payment of an advance of Rs.1,000 for the sale of the property. There was no other agreement or document evidencing the various terms of the contract between the parties with regard to the sale of the property. The learned Judge after perusal of the receipt, found that there was nothing to show that parties agreed that the relationship of landlord and tenant should cease and the tenant's possession should be traced only to the agreement of sale. The learned Judge opined that by merely entering into an agreement of sale, the tenant cannot acquire any right in the property. The learned Judge also found as a matter of fact that the agreement of sale did not refer to the fact that the tenant's possession was traceable to the agreement. It was in those circumstances, the learned Judge held that the possession of the petitioner-tenant cannot be treated as possession under the agreement of sale. In view of the facts and circumstances involved in that case, I find that in that case there was no agreement at all available prescribing the various terms relating to the sale of the property, more over, the learned Judge was of the view that there was no scope for applying the Section 53-A of the Act. The said Judgment is therefore not applicable to the case of the appellant. The other Judgment relied upon by the learned counsel for the plaintiff reported in B. Kuppula v. D. Sagunthala and another, 1987 (100) L.W. 577 which again arose under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The said Judgment is therefore not applicable to the case of the appellant. The other Judgment relied upon by the learned counsel for the plaintiff reported in B. Kuppula v. D. Sagunthala and another, 1987 (100) L.W. 577 which again arose under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned Judge held that mere agreement of sale will not terminate the landlord and tenant relationship and the liability of the tenant to continue to pay the rent would remain unless there are specific recitals to the contrary in the agreement of sale. That was a case where the claim was based on an oral agreement. Therefore there was no scope for applying Section 53 (A) of the Transfer of Property Act to come to a definite conclusion as to whether the party was entitled for the benefits provided under the said section. In the case on hand, as could be seen from the clause(3) of the agreement of sale, it was tacitly agreed between the plaintiff and the defendants that the plaintiff is put in possession and enjoyment of the suit schedule property by virtue of the said agreement and in his status as purchaser of the suit schedule property. Therefore the said judgment is also not applicable to the facts of the present case. 30. Therefore, I conclude that the status of the plaintiff in respect of the suit schedule property on the date of filing of the suit by either parties was only in his capacity as the prospective purchaser and not as a cultivating tenant as claimed by the plaintiff. Moreover, the plaintiff’s claim as a cultivating tenant was also not pursued after the coming into force of Ex.A-15.I also hold that the plaintiff committed deliberate violation of terms of the agreement Ex.A-15 and thereby committed breach of t he agreement which disentitled him to seek for enforcement of the terms of the said agreement in respect of the suit schedule property. Consequently, the defendants were entitled for the recovery of possession as claimed by them in O.S.No.18 of 1984 along with mesne profits payable by the plaintiff at the rate fixed by the Court below namely at the rate of Rs.4,500 per annum. Consequently, the defendants were entitled for the recovery of possession as claimed by them in O.S.No.18 of 1984 along with mesne profits payable by the plaintiff at the rate fixed by the Court below namely at the rate of Rs.4,500 per annum. The said payment should be made by the plaintiff from the date of filing of the suit in O.S.No.18 of 1984 i.e., from 24.10.1983 till the date of realisation. I answer the questions as above. Accordingly, A.S.No.637 of 1987 and Transfer Appeal Suit No.1086 of 1987 are dismissed with costs. The counsel's fee is fixed at Rs.2,000.