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2006 DIGILAW 1908 (MAD)

Vasanthi v. Venugopal (died by LRs) & Others

2006-07-31

S.K.KRISHNAN

body2006
Judgment :- Aggrieved by the judgment and decree passed by the learned Subordinate Judge, Cuddalore, in O.S. No. 172 of 1987, dated 28.4.1989, the plaintiff has filed the above appeal. 2. The facts leading to the filing of this appeal are as follows: a) Originally the suit property belonged to one Ramanathan Chettiar. After the death of the said Ramanathan Chettiar, his sons, namely, R. Bakthavathsalam and R. Deenadayalan sold the suit property to the plaintiff under a registered sale deed, dated 26.6.1982 for Rs. 35, 000/-. At the time of sale, the defendant was in possession of the property for rent Rs. 100/-. After purchase, as the plaintiff demanded Rs. 150/- as rent, which was not paid by the defendant, the plaintiff caused a notice dated 27.3.1985 and as there was no reply from the defendant, the plaintiff filed a petition for eviction before the Rent Controller, Cuddalore in R.C.0.P. No. 29 of 1996. b) The defendant resisted the Rent Control Proceedings denying the title of the plaintiff to the suit property on the ground that he was in possession under an agreement of sale executed by Ramanathan Chettiar. c) The plaintiff being the bona fide purchaser, the defendant cannot remain in possession and invoke the provisions of Section 53-A of the T.P. Act and therefore, the possession of the defendant is unlawful and is bound to surrender. d) Since the defendant denied the title & of the plaintiff in the Rent Control Proceedings, the plaintiff filed the above said suit for declaration of title and for possession. 3. On the basis of the oral and documentary evidence, as the Court below dismissed the suit, the plaintiff has come forward with the above appeal. 4. Heard both sides. 5. The point for consideration is whether the plaintiff is entitled to declaration and the recovery of property from the defendant. 6. The case of the appellant/plaintiff is that she purchased the suit property from the legal heirs/sons of Ramanathan Chettiar under Exhibit A1, dated 26.6.1982 for a sale consideration of Rs. 30,000/-. After the purchase of the house property by the plaintiff, necessary changes were effected in the municipal records. Since the defendant was in possession of the suit property, the appellant/plaintiff, after the purchase of the suit property, demanded higher rent from Rs. 100/- to Rs. 30,000/-. After the purchase of the house property by the plaintiff, necessary changes were effected in the municipal records. Since the defendant was in possession of the suit property, the appellant/plaintiff, after the purchase of the suit property, demanded higher rent from Rs. 100/- to Rs. 150/- it was denied by the defendant, she issued a legal notice to the defendant asking him to vacate from the premises and as the defendant refused to vacate from the premises, the appellant/plaintiff filed an eviction petition against the respondent/defendant. 7. In that proceedings, the respondent/defendant questioned the title of the appellant/plaintiff and claims that he entered with an agreement with the father of the vendors of the appellant/plaintiff. Therefore, finding no other alternative except to file a civil suit, accordingly, the appellant/plaintiff filed a suit against the respondent/defendant seeking the above stated relief. 8. The case of the respondent/defendant is that he entered into an agreement with Ramanathan Chettiar under Exhibit B4, dated 20.5.1975 to purchase the property. Initially, on the date of agreement, he paid Rs. 8000/as advance and subsequently, he paid Rs. 8500/-. At the time of execution of the said agreement, since the defendant was in possession of the suit property for rent, the execution of the sale deed was postponed for the reason that the vendor of the respondent/ defendant was not in a position to deliver a vacant possession to the defendant. Subsequently, on 12.4.1976, the respondent/defendant paid a sum of Rs. 1000/- to the said Ramanathan Chettiar. Altogether, the respondent/defendant paid a sum of Rs. 24, 000/-. Meanwhile, at the request of the said Ramanathan Chettiar, the respondent/defendant paid municipal tax of Rs. 232.54 and thereafter, the respondent/defendant handed over the property to the appellant/plaintiff on 1.7.1976. 9. It is emphasised by the respondent/defendant that the said Ramanathan Chettiar agreed to pay the interest at 24% p.a. towards the major portion of the amount paid by the respondent/defendant and the total interest comes to more than the balance amount payable to the said Ramanathan Chettiar. 10. It is stated by the respondent/defendant that though he urged Ramanathan Chettiar to register the sale deed, the said Ramanathan Chettiar passed away during 1980. 10. It is stated by the respondent/defendant that though he urged Ramanathan Chettiar to register the sale deed, the said Ramanathan Chettiar passed away during 1980. Therefore, the respondent/defendant was not able to get performed the sale in his favour, even though from the date of the execution of the agreement till the death of the said Ramanathan Chettiar he was willing and ready to perform the said contract. 11. Further, the respondent/defendant has stated that even after the death of the said Ramanathan Chettiar, though the respondent/defendant urged the sons of Ramanathan Chettiar, they refused to perform the sale in favour of the respondent/defendant. Contrary to the agreement entered with Ramanathan Chettiar, the sons of said Ramanathan Chettiar sold the property to the appellant/plaintiff knowing fully well that the agreement with their father was subsisting. 12. The learned counsel appearing for the appellant/plaintiff would vehemently contend that the appellant/plaintiff is a bona fide purchaser, however, subsequently, she came to know about the earlier agreement entered by the defendant with the father of the vendors of the appellant/plaintiff. Therefore, she filed the eviction petition for vacating the respondent/defendant from the premises after issuing notice. 13. In this regard, the learned counsel appearing for the appellant/plaintiff would point out that since the respondent/defendant was not able to fulfill the requirement as provided under Section 16 of the Specific Relief Act, he cannot seek protection under Section 53-A of the Transfer of Property Act and therefore, the possession of the respondent/defendant in the suit property is an unlawful one and he has no legal basis to remain in the premises on the basis of the agreement. Therefore, the respondent/defendant is not entitled to claim the benefits provided under Section 53-A of the Transfer of Property Act. 14. Moreover, the appellant/plaintiff after purchase of the suit property immediately issued notice to the respondent/defendant demanding higher rent from the defendant. The issuance of the said notice itself would prove the knowledge of the termination of the contract with Ramanathan Chettiar. Since the respondent/defendant has not approached the Court for seeking the necessary relief under the Specific Relief Act within three years from the date of receipt of the said notice, in such circumstances, the appellant/plaintiff, having purchased the property and the issuance of notice of cancellation to the defendant, is entitled to claim that she is a bona fide purchaser. Since the respondent/defendant has not approached the Court for seeking the necessary relief under the Specific Relief Act within three years from the date of receipt of the said notice, in such circumstances, the appellant/plaintiff, having purchased the property and the issuance of notice of cancellation to the defendant, is entitled to claim that she is a bona fide purchaser. Therefore, the appellant/plaintiff is entitled to recover the suit property from the respondent/defendant. 15. In support of his contention, the learned counsel for the appellant/plaintiff has relied on the decision of the Supreme Court reported in 1999 (8) SCC 587 . 16. With regard to the protection under Section 53-A of the T.P. Act the respondent/defendant cannot claim any protection under Section 53-A of the T.P. Act, unless he fulfills the requirements of Section 16 of the Specific Relief Act. 17. In this regard, it is pointed out that the respondent/defendant was never ready and willing to perform the said contract with the said Ramanathan Chettiar. In fact he has not paid the entire sale consideration to the said Ramanathan Chettiar. 18. With regard to the balance amount of Rs. 4000/- payable by the respondent/defendant to the said Ramanathan Chettiar, the reason stated by the respondent/defendant could not be taken into consideration. 19. It is stated by the respondent/defendant in the written statement that since Ramanathan Chettiar accepted the proposal suggested by the respondent/defendant that the balance sale consideration of Rs. 4, 000/- payable by him to be adjusted with the interest accrued on a sum of Rs. 26,000/-. In addition to that the said Ramanathan Chettiar was requested to adjust the amount of the property tax towards the amount due to be paid by the defendant and as the same was not accepted by the said Ramanathan Chettiar, the respondent/defendant while filing the written statement has categorically stated that if he failed to establish the said amount as stated above before the Court of law then he is ready to deposit the balance amount of Rs. 4, 000/-. The said averment referred to in the written statement would reveal the intention of the respondent/defendant that he was not always willing and ready to perform the contract. 20. Such being the case of the respondent/defendant, the respondent/defendant is not entitled to seek the protection under Section 53-A of the T. P. Act on the basis of mere possession. The said averment referred to in the written statement would reveal the intention of the respondent/defendant that he was not always willing and ready to perform the contract. 20. Such being the case of the respondent/defendant, the respondent/defendant is not entitled to seek the protection under Section 53-A of the T. P. Act on the basis of mere possession. Therefore, it cannot be considered that he was always willing and ready to perform the contract from the beginning of the agreement till the date of performing the sale. Therefore, the learned counsel would point out that in the above stated circumstances, the respondent/defendant is not entitled to claim such protection under Section 53-A of the T.P. Act. 21. In support of his contention, the learned counsel appearing for the appellant/plaintiff relied on the following decisions: a) Mohan Lal (Deceased) through his LRs. Kachru and Others v. Mirz Abdul Gaffar and Another AIR 1996 SC 910 : 1996 (1) SCC 639 . b) Rambhau Namdeo, Gajre v. Narayan Bapuji Dhotra (Dead) through LRs. 2004 (8) SCC 614 . c) Ramasamy Gounder v. K.M. Venkatachalam and Others 1976 (1) MLJ 243 . 22. Further, the learned counsel would submit that with regard to the due balance amount payable by the defendant to the said Ramanathan Chettiar, he has taken inconsistent pleas. 23. Emphasising the above stated legal position referred to in the decisions and also referring the conduct of the respondent/ defendant, the learned counsel appearing for the appellant/plaintiff would submit that the entire evidence and facts stated above, will go to show that the defendant is not entitled to the protection under Section 53 of the T.P. Act. 24. Further, the learned counsel would emphasise that the decisions referred to by the appellant/plaintiff directly applies to the facts of the given case. In such circumstances, the judgment and decree passed by the learned judge is liable to be set aside. 25. Per contra, the learned counsel appearing for the respondent/defendant would contend that as far as the appellant/plaintiff is concerned, she approached the Court not with clean hands. The reason stated by the learned counsel is that the appellant/plaintiff is knowing fully well the time of entering into an agreement with the sons of Ramanathan Chettiar. She already knew that the said property was not available for her immediate occupation and possession. The reason stated by the learned counsel is that the appellant/plaintiff is knowing fully well the time of entering into an agreement with the sons of Ramanathan Chettiar. She already knew that the said property was not available for her immediate occupation and possession. The statement of the appellant/plaintiff that as soon as she purchased the property, she immediately issued the notice to the respondent/defendant for enhancing the rent to the tune of Rs. 150/- is nothing but a case put up by the appellant/plaintiff. 26. It is emphasised by the learned counsel that the appellant/plaintiff purchased the property from, the sons of Ramanathan Chettiar only after knowing the fact that the agreement to purchase the said property was subsisting. 27. When such being the position, it is clear that the appellant/plaintiff purchased the suit property pending encumbrance. Therefore, she has not approached the Court with clean hands. 28. Moreover, the appellant/plaintiff being the subsequent purchaser of the suit property, she cannot question the lawful possession of the respondent/defendant. The reason behind that is the respondent/defendant has entered into an agreement of sale with Ramanathan Chettiar on 20.5.1975. 29. The entire transaction took place between Ramanathan Chettiar and the respondent/defendant which could have very well been known to the sons of the said Ramanathan Chettiar. Under these circumstances, the appellant/plaintiff could have very well avoided to purchase the same, whereas, the appellant/plaintiff knowing well about the circumstances, entered into an agreement with the sons of Ramanathan Chettiar and purchased the same. Therefore, when the appellant/plaintiff approached the Court without clean hands, she cannot question the lawful possession of the respondent/defendant. The appellant/plaintiff cannot exercise such right against the respondent/defendant. 30. In this regard, the learned counsel appearing for the respondent/defendant relied on the decision in K.R. Manickam v. P. Kumaravel and 4 Others 2000 (1) MLJ 204 : 1999 (3) CTC 15 . 31. Further, the learned counsel appearing for the respondent/defendant would vehemently emphasise that the settled principles of law stated by the appellant counsel with regard to the non-fulfilment of Section 16 of Specific Relief Act, thereby the respondent/defendant is not entitled for seeking protection under Section 53-A of the T.P. Act are not at all applicable to the facts of the present case. It is pointed out by the learned counsel that the facts of the present case is totally different. 32. It is pointed out by the learned counsel that the facts of the present case is totally different. 32. In this regard, the learned counsel appearing for the respondent/defendant/defendant would submit that on the date of entering into an agreement with Ramanathan Chettiar, the respondent/defendant paid a sum of Rs. 8,500/- and thereafter on 19.1.1976, a further sum of Rs. 16,500/- was paid and an endorsement was made with regard thereto in the agreement itself. In addition to that on 19.1.1986 under Exhibit B8, the said Ramanathan Chettiar attorney the tenancy in favour of the respondent/defendant by stating that the rents from 1.1.1986 shall be collected by the respondent/defendant under Exhibit B6, dated 24.2.1986. The said Ramanathan Chettiar directed the respondent/defendant to pay the municipal tax to show the bona fide intention to perform the said contract and handed over the title deeds to the respondent/defendant. The above stated facts would clearly prove that not only the respondent/defendant was always willing to perform the contract from the date of agreement but also the said Ramanathan Chettiar was also willing to perform the contract. 33. In this regard, it is pointed out by the learned counsel that the part performance as referred to under Section 53-A of the T.P. Act has been fully complied with by the respondent/defendant. The only minimum amount due payable by the respondent/defendant is Rs. 4, 000/ -. For that amount also, the respondent/defendant never refused to pay the said amount to Ramanathan Chettiar, whereas he has stated that since the respondent/defendant was already paid the amount of Rs. 26,000/even prior to the delivery of possession, he asked the said Ramanathan Chettiar to calculate the interest at the rate of 24% accrued thereon and asked him to adjust towards the balance amount of Rs. 4,000/-. This fact has been stated by the respondent/defendant in his written statement. 34. In addition to that he has stated that if the same is not established, the defendant was willing to deposit the said amount in the Court. That shows the bona fide intention of the respondent/defendant to perform the contract with Ramanathan Chettiar. 35. The case of the respondent/defendant is that when the agreement for sale was pending between the two, the purchaser of adjacent property filed a suit seeking the same relief against the respondent and also one Venugopal, Bakthavathsalu and Deenadayalan. 36. That shows the bona fide intention of the respondent/defendant to perform the contract with Ramanathan Chettiar. 35. The case of the respondent/defendant is that when the agreement for sale was pending between the two, the purchaser of adjacent property filed a suit seeking the same relief against the respondent and also one Venugopal, Bakthavathsalu and Deenadayalan. 36. The said suit was contested by the defendant. That was also the situation prevailing against the performance of sale. No doubt this fact was neither spoken by the defendant nor referred to in the written statement. However, it is pointed out that as soon as the death of Ramanathan Chettiar during the year 1980, the respondent/defendant urged the sons of the Ramanathan Chettiar to perform the sale in his favour. In spite of the request made by the respondent/defendant, the sons of Ramanathan Chettiar refused to do the same. 37. Therefore, there is no circumstance to say that the respondent/defendant is not willing to perform the said contract with Ramanathan Chettiar. In the above circumstances, it is pointed out that all the decisions referred to by the learned counsel appearing for the appellant/plaintiff are not at all applicable to the facts of the case. Therefore, the appellant/plaintiff being a subsequent purchaser cannot question the proprietary status of the respondent/defendant. 38. As already discussed above, the respondent/defendant, based on the agreement with Ramanathan Chettiar under Exhibit B4, dated 20.5.1975 occupied the premises as a proposed purchaser. 39. It is pointed out that the possession of the respondent/defendant over the suit property is protected under Section 53-A of the T.P. Act and therefore, his possession could not be questioned by the appellant/plaintiff. 40. In this regard, the learned counsel appearing for the respondent/defendant relied on the decision of the Supreme Court in Shrimant Shamrao Suryavanshi and Another v. Prahlad Bhairoba Suryavanshi (Dead) by LRs. and Others AIR 2002 SC 960 : 2002 (3) SCC 676 . 41. A perusal of the evidence adduced by D.W.1 would clearly reveal the bona fide intention of the respondent/defendant that he was always willing and ready to perform the contract with Ramanathan Chettiar from the date of agreement till his death. 42. and Others AIR 2002 SC 960 : 2002 (3) SCC 676 . 41. A perusal of the evidence adduced by D.W.1 would clearly reveal the bona fide intention of the respondent/defendant that he was always willing and ready to perform the contract with Ramanathan Chettiar from the date of agreement till his death. 42. As already discussed above, the said Ramanathan Chettiar with the hope of performing the said contract with the respondent/defendant had received money from him and to show his bona fide intention towards the performance of the contract, he has gone to the extent of entrusting the parent documents with the respondent/defendant. 43. On a careful perusal of the entire circumstances it would clinchingly prove that the respondent/defendant was always willing and ready to perform the contract with Ramanathan Chettiar even though the respondent/defendant has not come forward to file a suit for seeking the necessary relief under the Specific Relief Act. 44. In such circumstances, this Court does not find any infirmity with regard to the satisfaction of the requirements of Section 53-A of the T.P. Act and Section 16 of the Specific Relief Act. 45. On a careful consideration of the entire evidence adduced by both the sides, and also considering the materials produced on either side, this Court does not find any infirmity in the judgment and decree passed by the learned Judge. The legal grounds set out by the appellant/plaintiff for rejecting the case stated by the respondent/defendant are not in consonance with that of the decisions relied on by the appellant/plaintiff. The circumstances stated by the respondent/defendant are quite convincing to confirm the reasons stated by the learned Judge for dismissing the suit. In such circumstances, nothing is warranted to interfere with the decision arrived at by the learned Judge. In result, the appeal is dismissed confirming the judgment and decree of the learned trial Judge. No costs.