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2001 DIGILAW 637 (MAD)

A. Rajendran v. Purushothaman and another

2001-06-19

A.RAMAMURTHI

body2001
JUDGEMENT: The unsuccessful plaintiff has preferred the second appeal aggrieved against the judgment and decree dated 8.12.1998 made in A.S. No.143 of 1997 in the file of Additional District Court, Thiruvannamalai reversing the judgment and decree dated 29.9.1997 made in O.S. No.123 of 1998 on the file of District Munsif Court, Thiruvannamalai. 2. The case in brief is as follows: The plaintiff filed a suit for directing the defendants to execute a sale deed in his favour after receiving the balance of Rs.4,000. The suit property originally belonged to the defendants and they agreed to sell the same in favour of the plaintiff for Rs.6,500. The defendants had executed a sale deed in favour of the plaintiff on 5.2.1985 and on the said date, the defendants received Rs.1,000. The plaintiff also discharged the usufructuary mortgage executed in favour of Raghava Udayar, father of the plaintiff. Later, the defendants received a sum of Rs.500 through Kathirvel Udayar and the plaintiff thus paid a sum of Rs.2,500 and the balance payable was only Rs.4,000. The plaintiff had been calling upon the defendants to come and register the document or execute a fresh document on various occasions. The defendants also wrote number of letters to Kathirvel Udayar. The first defendant also wrote a letter to the plaintiff on 29.10.1987 stating that he would register the document after getting clearance from his sister and the plaintiff believed the representation and he kept quiet. When they failed to execute the document, the plaintiff was constrained to file this suit. 3. Ethiraj Udayar, father of the first defendant died intestate in 1970 leaving behind him his wife, the second defendant and also daughter Poongothai Ammal. Now, Poongothai Ammal has not been impleaded as a party in the suit, and, as such, the suit is bad for non-joinder of necessary parties. She is also having a share in the property and she did not join in the alleged execution of the sale deed. The plaintiff ought to have filed a suit for partition. The defendants never agreed to convey the property for a sum of Rs.6,500. Ethiraj Udayar by name Rathina Udayar and the father of the plaintiff by name Raghava Udayar are brothers. Raghava Udayar approached the defendants to purchase the property for a sum of Rs.26,500 and it was agreed. The plaintiff ought to have filed a suit for partition. The defendants never agreed to convey the property for a sum of Rs.6,500. Ethiraj Udayar by name Rathina Udayar and the father of the plaintiff by name Raghava Udayar are brothers. Raghava Udayar approached the defendants to purchase the property for a sum of Rs.26,500 and it was agreed. He wanted the sale deed to be executed in the name of his son, the plaintiff. The usufructuary mortgage in favour of Raghava Udayar was not discharged and similarly, the sum of Rs.500 was also not received through Kathirvel Udayar. The possession of hypotheca had already been transferred to the mortgagee and the said Raghava Udayar was in possession and enjoyment of the same and they are also entitled to claim benefit under Act 40 of 1979. The suit is also hopelessly barred by limitation. The alleged document dated 5.2.1985 is not an agreement of sale. The suit is liable to be dismissed. 4. The trial Court framed 9 issues and on behalf of the plaintiff P.W.1 was examined and Exs.A-1 and A-2 were marked. On the side of the defendants, the first defendant was examined as D.W.1 and Exs.B-1 and B-2 were marked. The trial Court decreed in favour of the plaintiff, directing the defendants to convey their share in the property after receiving the balance of Rs.4,500 in a period of two months, failing which, the plaintiff was entitled to get conveyance through Court. Aggrieved against this, the defendants preferred A.S. No.143 of 1997 on the file of Additional District Court, Thiruvannamalai and the learned Judge after hearing the parties, allowed the appeal and set a side the judgment and decree of the trial Court and dismissed the suit. Aggrieved against this, the plaintiff has come forward with the present second appeal. 5. The plaintiff has raised the following substantial questions of law in the grounds of appeal: (i) Is the learned Additional District Judge correct in dismissing the suit on the ground that the suit has been filed on the last date? (ii) Is the learned Additional District Judge correct in not decreeing the suit on the ground that the plaintiff has not discharged the mortgage? 6. Heard the learned counsel of both sides. 7. The points that arise for consideration are: (1) Whether the suit is barred limitation? (ii) Is the learned Additional District Judge correct in not decreeing the suit on the ground that the plaintiff has not discharged the mortgage? 6. Heard the learned counsel of both sides. 7. The points that arise for consideration are: (1) Whether the suit is barred limitation? (2) Whether the plaintiff is entitled to get a decree as prayed for? (3) Whether the suit is not maintainable as contended by the defendants? (4) Whether the payment of Rs.2,500 by the plaintiff is proved? (5) To what relief? 8.Points: There is no dispute that the suit property belong to the defendants. The plaintiff has come forward with a specific case that the defendants agreed to convey the property for a consideration of Rs.6,500 on 5.2.1985 and executed the sale deed. They were paid a sum of Rs.1,000 and the property was also mortgaged in favour of Raghava Udayar, father of the plaintiff and they have paid the sum of Rs.1,000 to him and discharged the mortgage. Later a sum of Rs.500 was also paid to the defendants through one Kathirvel Udayar and in all, the plaintiff has paid a sum of Rs.2,500 and he is always ready and willing to perform his part of the contract. However, the defendants have failed to convey the property and in fact, the first defendant also wrote a letter that he would convince his sister Poongothai Ammal and convey the property and believing the representation, the plaintiff kept quiet and later filed the suit on the last date of limitation. He is ready and willing to deposit the balance of sale consideration namely, Rs.4,000. 9. The defendants mainly contended that the suit is not maintainable and the only relief available to the plaintiff is to invoke Sec.77 of the Registration Act. Poongothai, the sister of the first defendant, is also a sharer in the property and she had not joined in the document dated 5.2.1985. They have never agreed to convey the property for the sum of Rs.6,500, but they agreed to convey the property only for a sum of Rs.26,500. The plaintiff was never ready and willing to perform his part of the contract and he had also not paid the sum of Rs.2,500 and as the plaintiff was not ready and willing he is not entitled to the relief of specific performance. The plaintiff was never ready and willing to perform his part of the contract and he had also not paid the sum of Rs.2,500 and as the plaintiff was not ready and willing he is not entitled to the relief of specific performance. The usufructuary mortgage in favour of Raghava Udayar was also not discharged by the plaintiff and similarly, the defendants have not received a sum of Rs.500 from Kathirvel Udayar and the alleged payments could not be true. It is further contended that the document dated 5.2.1985 is not an agreement of sale but only a sale deed and it was engrossed on a stamp paper to the value of Rs.90 only. 10. Learned counsel for the appellant plaintiff contended that when the lower appellate Court came to the conclusion that the suit is maintainable, it ought to have confirmed the decree of the trial Court. The finding of the lower appellate Court that the plaintiff was never ready and willing to perform his part of the contract is incorrect. In fact, there is a clear averment in the plaint to the effect that the plaintiff was always ready and willing to perform his part of the contract. The mortgagee is none other that the plaintiff’s own father and the document itself has been filed on the side of the defendants thereby establishing the payment of Rs.1,000. It is not necessary that the plaintiff should deposit the entire sale consideration into the Court in a suit filed for specific performance. The delay in filing the suit has been properly explained and it is also proved by Ex.A-2 admittedly written by the first defendant to the plaintiff. Simply because the suit was filed on the last date it does not mean that the plaintiff was not ready and willing to perform his part of the contract. Even assuming that the payment of Rs.2,500 was not established, the plaintiff could be directed to pay the entire sale consideration on execution of the sale deed. 11. It is necessary to state that the trial Court has decreed the suit in part relating to the 2/3rd share of the defendants with a further condition, directing the plaintiff to deposit the balance of Rs.4,500 in a period of two months. 11. It is necessary to state that the trial Court has decreed the suit in part relating to the 2/3rd share of the defendants with a further condition, directing the plaintiff to deposit the balance of Rs.4,500 in a period of two months. Learned counsel for the appellant/ plaintiff mainly contended that the execution of Ex.A-1 has been admitted by the defendants and they have also let in positive evidence to show the payment of Rs.2,500 on various dates. Admittedly, the sum of Rs.1,000 was paid on the date of Ex.A-1, further sum of Rs.1,000 was paid with the father of the plaintiff for discharging the usufructuary mortgage and a further sum of Rs.500 was paid to the defendants through one Kathirvel Udayar. Now, the usufructuary mortgage document has been filed into the Court by the defendants and filed as Ex.B-2. Possession of the property was with Raghava Udayar, the father of the plaintiff in his capacity as mortgagee. There is also recital in Ex.A-1 that the possession of the property was with the plaintiff. No doubt, there is no proper evidence relating to the payment of Rs.500 through Kadirvel Udayar and because of that only, the trial Court disbelieved the same. However, learned counsel for the appellant/ plaintiff contended that Kathirvel Udayar was alive at the time of filing of the written statement by the defendants and they could have verified from the said Kathirvel Udayar whether the plaintiff has made such a payment. It is pertinent to state that the burden is only upon the plaintiff to prove the payment alleged by him. Accordingly, the plaintiff has not chosen to get any receipt from Kathirvel Udayar or from the defendants relating to the payment of Rs.500. In the absence of any satisfactory evidence relating to the payment of Rs.500. I am of the view that the plaintiff has failed to establish the same. 12. It is necessary to state that the lower appellate Court has misdirected itself on the wrong conclusion that there was no averment in the plaint to the effect that the plaintiff was ready and willing to perform his part of the contract. A plain reading of para 6 of the plaint clearly indicates that there is an averment relating to the readiness and willingness on the part of the plaintiff to perform his part of the contract. A plain reading of para 6 of the plaint clearly indicates that there is an averment relating to the readiness and willingness on the part of the plaintiff to perform his part of the contract. When there is a clear averment in the plaint, the reasoning given by the lower appellate Court is patently incorrect and only because of this, the suit filed by the plaintiff was dismissed. There is dispute between the parties relating to the amount of consideration for conveying the property. According to Ex.A-1, the sale consideration agreed was only Rs.6,500 whereas D.W.1 would state that they agreed to convey the property for a sum of Rs.26,500. At one point of time, the defendants took a plea denying the execution of Ex.A-1, but, however, at a later point of time while admitting Ex.A-1, execution of the deed, stated that some of the payments have not been made by the plaintiff and he was also not ready and willing to pay the balance of sale consideration. 13. Learned counsel for the defendants further stated that there was no notice prior to the filing of the suit and in fact, there was delay on the part of the plaintiff and the suit was ultimately filed only on the last date of limitation and hence, the plaintiff is not entitled to claim the equitable relief of specific performance. He further stated that the plaintiff has not come to Court with clean hands and on this ground also, the relief of specific performance cannot be granted. He again reiterated that the only remedy available to the plaintiff is under Sec.77 of the Registration Act and the present suit is not sustainable under law and relied upon number of decisions. Learned counsel further stated that Ex.A-1 is only the sale deed and not an agreement of sale and under the circumstance, the plaintiff is not entitled to claim specific performance. The plaintiff ought to have presented the document in a period of three months and sought for compulsory registration. Admittedly, Ex.A-2, letter was written by the first defendant to the plaintiff, wherein it is clearly stated that they would somehow compromise the sister and the document can be registered. He further stated that he would meet the plaintiff after pacifying the sister. Ex.A-2 was signed on 29.10.1987 whereas Ex.A-1, was dated 5.2.1985. Admittedly, Ex.A-2, letter was written by the first defendant to the plaintiff, wherein it is clearly stated that they would somehow compromise the sister and the document can be registered. He further stated that he would meet the plaintiff after pacifying the sister. Ex.A-2 was signed on 29.10.1987 whereas Ex.A-1, was dated 5.2.1985. Now P.W.1 stated that believing the representation made by the first defendant, he was keeping quiet that they would register the document. Now, there is no force in the contention of the learned counsel for the defendants that the only remedy available to the plaintiff is to invoke Sec.77 of the Registration Act. I am of the view that it is open to the plaintiff to move the Court and claim the relief of specific performance and the Court can consider the question based upon the readiness and willingness on the part of the plaintiff and other reasons. 14. Learned counsel for the respondents relied on the decision reported in Chelliah Nadar, G. etc. and others v. Periasami Nadar and others, (1993)2 M.L.J. 272 : (1993)2 L.W. 84 , for the proposition that the plaintiff coming to Court with unclean hands is not entitled to the relief of specific performance. In Nallaya Gounder and another v. P.Ramaswami Gounder etc. and others, (1993)2 L.W. 86 , for the proposition that putting forward a false case with regard to receipt for delivery of possession, concocted for the purpose of the case, the relief can be declined. There is no dispute about these propositions and they have no application to the case on hand. 15. It has been held in Swami Ganesh Dassji v. Sita Ram Thapar, A.I.R. 1996 S.C. 2095, that readyness and willingness to perform has to be inferred from conduct of party and attending circumstances. Learned counsel for the respondents also relied on Kalavakurti Venkata Subbiah v. Bala Gurappagari Guruvi Reddy, (1999)7 S.C.C. 114 , wherein it was observed as follows: “The provisions of the Specific Relief Act, 1963 and the Registration Act, 1908 may be to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Sec.77 of the Registration Act has reached and no other relief except a direction for Registration of the document is really asked for, Sec.77 of the Act may be an exclusive remedy. Where the stage indicated in Sec.77 of the Registration Act has reached and no other relief except a direction for Registration of the document is really asked for, Sec.77 of the Act may be an exclusive remedy. However, in other cases, it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed but also recovery of possession and mesne profits or damages, a suit under Sec.77 of the Registration Act is not an adequate remedy.” 16. Reliance is also placed upon the decision reported in Ram Kumar Agarwal v. Tahwar Das, (1999)7 S.C.C. 303 for the proposition that a person who falsely claims to have paid a sum of money and attempts to prove the plea at trial stage cannot be said to have been ever ready and willing to pay the sum due under the contract in question. 17. Learned counsel for the respondents also placed reliance on the decision Indravathi v. Kamala, (2000)4 C.T.C. 278 , that “purchaser did not state any reason for not paying third instalment even in subsequent notice - purchaser was not ready and willing to perform her part of contract - Purchaser who is keen on purchasing property would take steps to pay consideration at agreed time and more so when advance has been refunded” It was held that the purchaser has waived right for specific performance. This decision is not applicable to the case on hand. 18. Learned counsel for the respondents also relied on Ajaib Singh and others v. Tulsi Devi (Smt.), (2000)6 S.C.C. 566 for the principle that the person making averments as per con-venience without regard for truth, held, would be precluded from getting equitable relief. There is no dispute about this principle. It has been held in Pankajam Parthsarathy and others v. Kasturi Guna Singh, (2001)1 C.T.C. 200 , that “purchaser was not ready and willing to perform part of contract till filing of suit. Purchaser need not produce sale consideration in Court but when Court directed deposit of consideration within specific time purchaser is obliged to deposit the same. Default would show that purchaser was not ready and willing to perform her part of contract. Non-deposit shows that purchaser was not possessed of funds”. Purchaser need not produce sale consideration in Court but when Court directed deposit of consideration within specific time purchaser is obliged to deposit the same. Default would show that purchaser was not ready and willing to perform her part of contract. Non-deposit shows that purchaser was not possessed of funds”. This decision is also not applicable to the case on hand. 19. Learned counsel for the appellant relied on the decision reported in N.Ramalinga Nainar v. Noor Mohammed Saheb and another, (2001)1 L.W. 691 , wherein it was held, “Decree passed under Sec.77 directing registration of the document before the Registrar, if duly presented within thirty days of the passing of the decree - No Registrar will be bound to obey the decree if the document is not presented within the period - Failure to comply entails lapse of the right - Plea that the subsequently instituted suit for specific performance should be treated as a continuation, rejected” A careful reading of the entire decision would clearly indicate that the principle laid therein can be made applicable to the case on hand. There is a reference about a Full Bench of Andhra Pradesh High Court in the case of Satyanarayana v. Gangamma, A.I.R. 1959 A.P. 626: (1959)2 An W.R. 170 (F.B.), wherein it has been held that Sec.77 of the Registration Act does not contain an exclusive remedy to a person who seeks to enforce his rights flowing from a contract of sale and it does not bar a suit for specific performance of an agreement to sell, though, of course, being an equitable remedy, the Court is not bound to grant a decree in every case in which the agreement was not carried out in its entirety. Sec.77 of the Registration Act, cannot take away the larger remedy provided for under the Specific Relief Act. Sec.77 is only a facility available to the aggrieved party and not a fetter on the Court’s power and whether the plaintiff has already set in motion the machinery for enforcing registration or not is immaterial and cannot inhibit a suit de hors Sec.77. It is further clear that even though the suit for specific performance is not maintainable under Sec.77 of the Registration Act, then it is for the Court to consider whether the plaintiff is entitled to the relief. It is further clear that even though the suit for specific performance is not maintainable under Sec.77 of the Registration Act, then it is for the Court to consider whether the plaintiff is entitled to the relief. In order to get the discretionary relief, it is well established principle that the plaintiff was not at fault or the delay in approaching the Court for such relief of specific performance is not his. If the principle in the aforesaid decision is made applicable to the case on hand, it is manifestly clear that there was no fault on the part of the plaintiff in approaching the Court. Ex.A-1 had come into existence in the year 1985, but even in 1987 the first defendant has given false hope that he would pacify his sister and get the conveyance as early as possible. It was only under such circumstance, the plaintiff had kept quiet without either sending the notice or moving the Court till the last date of limitation. Since the suit was filed in the last day of limitation, it cannot be used as a ground to reject the suit of specific performance so far as the plaintiff is concerned. If there are latches and negligence on the part of the plaintiff in moving Court and the plaintiff is not ready and willing to perform his part of the contract, then only the equitable relief or specific performance can be negatived. The documents as well as oral evidence in the case clearly established that the plaintiff was simply believing the representation made by the first defendant and there was no carelessness or latches on the part of the plaintiff. Considering the relationship of the parties, it is quite probable that the plaintiff might have believed the representation of the 1st defendant and also supported by the letter Ex.A-2. 20. P.W.1 also in the course of evidence clearly stated that he was ready and willing to perform his part of the contract and also other details. Ex.A-1 is a sale deed and as it has not been registered, it can be treated as agreement of sale and under the circumstance, the plaintiff would be naturally entitled to get specific performance on payment of balance of sale consideration. Valid and convincing reasons have been given by the plaintiff for not moving the registration authorities for compulsory registration. Ex.A-1 is a sale deed and as it has not been registered, it can be treated as agreement of sale and under the circumstance, the plaintiff would be naturally entitled to get specific performance on payment of balance of sale consideration. Valid and convincing reasons have been given by the plaintiff for not moving the registration authorities for compulsory registration. There is also nothing in Ex.A-2 to the effect that the amount mentioned in Ex.A-1 was not paid. D.W.1 also in the course of cross examination admitted that they signed in Ex.A-1 after perusing the recitals. It is necessary to state that the first defendant has studied upto Pre-University and is working in the Police Department as an Assistant. He also admitted in the cross examination that the plaintiff approached him on two occasions for the purpose of registering the document. This is one more circumstances to show that the plaintiff was always ready and willing to perform his part of the contract. He also admitted that he informed the plaintiff to pacify the sister. As adverted to, the lower appellate Court has misdirected itself wrongly as if there was no averment in the plaint that the plaintiff was ready and willing to perform his part of the contract. 21. Taking into consideration the oral evidence as well as the documentary evidence, it is manifestly clear that the plaintiff was always ready and willing to perform his part of the contract and towards Ex.A-1, a sum of Rs.2,000 has been paid and the balance amount is payable by him. The suit filed by the plaintiff is also maintainable since for more than two years, the defendants have been promising the plaintiff to register the document after pacifying the sister of the first defendant. Simply because the plaintiff has failed to produce the document for compulsory registration, it cannot be said that the plaintiff is not entitled to get specific performance. Hence, I am of the view that the conclusion arrived at by the lower appellate Court is based on erroneous appreciation of law and had committed grave mistake in the factual aspect also and, as such, interference is called for. Hence, the points are answered accordingly. 22. Hence, I am of the view that the conclusion arrived at by the lower appellate Court is based on erroneous appreciation of law and had committed grave mistake in the factual aspect also and, as such, interference is called for. Hence, the points are answered accordingly. 22. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. However, there will be no order as to costs. The plaintiff is directed to deposit the balance amount in a period of two months.