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2007 DIGILAW 1 (MAD)

Ambar Batcha v. V. Sakthivel & Others

2007-01-01

A.SELVAM

body2007
Judgment :- The appellant has challenged the judgment and decree dated 5/7/1990 passed in Original Suit No.132 of 1985 by The Sub-Court, Dindigul. 2. The appellant as plaintiff has instituted the Original Suit No.132 of 1985 on the file of the Sub-Court, Dindigul for the relief of specific performance, wherein the present respondents have been arrayed as defendants. The trial Court after contemplating both the oral and documentary evidence adduced on either side has dismissed the suit. But however, directed the first defendant to pay the advance amount of Rs.5,000/-to the plaintiff. Against the judgment and decree passed by the trial Court, the present appeal has been filed at the instance of the plaintiff. .3. The conspectus of the averments made in the amended plaint may be stated like thus:- The suit property is the self-acquired property of the first defendant and he got the same under a registered sale deed dated 13/3/1968. After purchase, the first defendant has constructed a building on the southern side and keeping the suit property as a vacant site. The first defendant has agreed to sell the suit property in favour of the plaintiff and thereby executed a sale agreement on 18/1/1995 and the first defendant has also received an advance amount of Rs.5,000/-. In the sale agreement, it has been stated that the first defendant should execute a sale deed in favour of the plaintiff within a period of six months, after getting correct valuation of the suit property at the rate of Rs.13.50 per square feet. Further, it is stated in the sale agreement that if the plaintiff fails to perform his obligation he has to forego the advance amount. As per the terms and conditions of the sale agreement, the plaintiff is always ready and willing to perform his part of the contract. The first defendant has sent a notice dated 9/2/1995 contending false and frivolous allegations. The first defendant has created a sham and nominal settlement deed in favour of the defendants 2 to 5. The said settlement is not binding upon the plaintiff. During the pendency of the suit, the first defendant has passed away leaving behind the defendants 6 and 7 as his legal representatives. The plaintiff is always ready to deposit the balance of sale price in the Court. Under the said circumstances, the plaintiff has come forward with the present suit for the relief indicated above. During the pendency of the suit, the first defendant has passed away leaving behind the defendants 6 and 7 as his legal representatives. The plaintiff is always ready to deposit the balance of sale price in the Court. Under the said circumstances, the plaintiff has come forward with the present suit for the relief indicated above. .4. The material averments made in the written statement filed by the first defendant may be stated like thus:- .The Suit property has been purchased by using joint family funds and therefore, the suit property is not the self-acquired property of the first defendant. The first defendant has already settled the suit property in favour of the defendants 2 to 5. The first defendant has not executed any valid sale agreement in favour of the plaintiff. In the alleged sale agreement, no extent and boundaries of the property agreed to be sold have been mentioned. The plaintiff is not entitled to get the relief of specific performance and therefore, the present suit deserves to be dismissed. .5. The material averments made in the written statement filed by the second defendant and adopted by the defendants 3 to 5 are summarised as follows:- The suit property and its adjoining property have already been settled in favour of the defendants 2 to 5 under a settlement deed dated 7/12/1984. On the same day, possession has also been handed over to the defendants 2 to 5. On the date of alleged sale agreement, the first defendant has no title to the suit property. The plaintiff is not entitled to get the relief sought for in the plaint and altogether, the present suit deserves dismissal. 6. On the basis of the rival pleadings of the parties, the trial Court has framed necessary issues and after scrutinising both the oral and documentary evidence has dismissed the suit as noted down earlier. .7. The learned counsel appearing for the appellant with great vehemence has contended that the suit property is the absolute property of the first defendant and he entered into an agreement of sale on 18/1/1985 with the plaintiff and thereby agreed to sell the suit property. .7. The learned counsel appearing for the appellant with great vehemence has contended that the suit property is the absolute property of the first defendant and he entered into an agreement of sale on 18/1/1985 with the plaintiff and thereby agreed to sell the suit property. But in order to defeat the right of the plaintiff, the first defendant has created a sham and nominal settlement deed in favour of the defendants 2 to 5 and the same is not binding upon the plaintiff and since the defendants have refused to execute a sale deed in favour of the plaintiff in pursuance of the sale agreement dated 18/1/1985, the plaintiff has come forward with the present suit for the relief of specific performance. But the trial Court without considering the contentions urged on the side of the plaintiffs has refused the relief of specific performance and under the said ambience, the judgment and decree passed by the trial Court are liable to be set aside. .8. In support of his contention, he has drawn the attention of the Court to the decision reported in 1999 (iii) CTC – 394 (RATHINAM CHETTIAR Vs. EMBAR NAIDU AND ANOTHER), wherein this Court has held that ."Purchaser need not actually tender price or deposit consideration in court except when so directed by the Court." 9. It is an everlasting principle of law that a purchaser in a suit for specific performance need not jingle the coins for the purpose of showing his readiness and willingness to get a sale deed in his favour. It is also an axiomatic principle of law that each case must be determined in the fact situation obtaining therein. 10. It has been contended on the side of the respondents that in the alleged sale agreement, no extent and boundaries of the properties agreed to be conveyed have been mentioned and therefore, the alleged sale agreement cannot be executed and in short on the basis of alleged sale agreement, no sale deed could be executed in favour of the plaintiff and therefore, the plaintiff can easily be non-suited. 11. The alleged sale agreement has been marked as Ex.A.2, wherein it has been clearly mentioned that the property in question is the absolute property of the first defendant. Further, it is stated in Ex.A.2 that the property agreed to be sold should be measured subsequently. 11. The alleged sale agreement has been marked as Ex.A.2, wherein it has been clearly mentioned that the property in question is the absolute property of the first defendant. Further, it is stated in Ex.A.2 that the property agreed to be sold should be measured subsequently. In fact, in the property description, no specific extent and no specific boundaries have been given. Therefore, it is needless to say that the property agreed to be sold under Ex.A.2 has not at all been described. Since Ex.A.2 is an incomplete sale agreement, it cannot be executed on any ground. Therefore, in view of the bereft of particulars found in Ex.A.2, the Court can reject the relief of specific performance. .12. Even assuming without conceding that Ex.A.2 is an agreement of sale, which can be executed, the Court must analyse whether on the date of Ex.A.2, the first defendant has title to the suit property. 13. Even in the plaint, it has been clearly mentioned that on 7/12/1984, the first defendant has executed a sham and nominal settlement deed in favour of the defendants 2 to 5 so as to defeat the right of the plaintiff. The specific averments made in the written statement filed by the defendants are that on the said date, the first defendant has executed the alleged settlement deed in favour of the defendants 2 to 5. Therefore, on the date of Ex.A.2, the first defendant has no tangible interest over the suit property and therefore, Ex.A.2, is nothing but a void document and the same cannot be executed. 14. The settlement deed dated 7/12/1984 alleged to have been executed by the first defendant in favour of the defendants 2 to 5 has been marked as Ex.B.2. Admittedly, Ex.A.2 the sale agreement has come into existence on 18/1/1985. Even though Ex.B.2 has been written on 7/12/1984, the same has been registered on 8/2/1985 i.e., subsequent to the existence of Ex.A.2 dated 18/1/1985. At this juncture, a nice legal question arises as to whether the registration of a particular document relates back to its execution. .15. Admittedly, Ex.A.2 the sale agreement has come into existence on 18/1/1985. Even though Ex.B.2 has been written on 7/12/1984, the same has been registered on 8/2/1985 i.e., subsequent to the existence of Ex.A.2 dated 18/1/1985. At this juncture, a nice legal question arises as to whether the registration of a particular document relates back to its execution. .15. For the purpose of analysing the above legal point, the Court has to make reliance upon the provisions of Section 47 of The Registration Act, wherein it reads as follows:- "A registered document shall operate from the time from which it would have commenced to operate if no registration thereon had been required or made and not from the time of its registration." .16. It is a settled principle of law that if a deed has been registered, it takes effect not from the date of registration but retrospectively from the date of its execution. In the instant case, Ex.B.2 has come into existence on 7/12/1984 and it has been registered on 8/2/1985. As per the settled law, Ex.B.2 has come into operation from 7/12/1984. On the said date itself, the beneficiaries under Ex.B.2 viz., defendants 2 to 5 herein have derived valid title to the property found therein. Therefore, on the date of Ex.A.2, the first defendant has no tangible interest over the property mentioned therein and under the said circumstances also, the plaintiff is not entitled to get the relief sought for in the plaint. 17. The trial Court after evaluating the available evidence on record has rightly negatived the relief of specific performance. In view of the foregoing narration of both the factual and legal aspects, this Court has not found any valid ground to make interference with the correct findings given by the trial Court and the argument advanced by the learned counsel appearing for the appellant is sans merit and the same can be eschewed. 18. In fine, this appeal deserves dismissal and accordingly is dismissed with costs. The judgment and decree passed in Original Suit No.132 of 1985 by The Sub-Court, Dindigul are confirmed.