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2007 DIGILAW 3731 (MAD)

Sreeranga Nachiar (deceased) v. Athi Chettiar

2007-11-21

P.R.SHIVAKUMAR

body2007
Judgment :- This second appeal is directed against the judgment and decree of the learned Principal District Judge, Tirunelveli, dated 07.09.1994 made in A.S.No.128 of 1992 reversing the judgment and decree of the trial Court (Court of the Principal Subordinate Judge, Tirunelveli) dated 31.07.1992. The suit for specific performance had been dismissed by the trial Court. The lower appellate Court reversed the same and decreed the suit for the relief of specific performance as prayed for. 2. The respondent herein/plaintiff had filed the suit in O.S.No.61 of 1981 on the file of the Principal Subordinate Judge, Tirunelveli based on Ex.A1-suit agreement for sale dated 26.01.1983. According to the plaint averments, the deceased first appellant/defendant entered into an agreement with the respondent/plaintiff under Ex.A1 for the sale of the suit property for a sale consideration of Rs.20,424/- calculated at the rate of Rs.9,200/- per acre and received a sum of Rs.1,001/- towards advance and part payment of sale consideration on the date of agreement itself. It was the further contention of the respondent/plaintiff that possession of the suit property was delivered to him on the date of agreement in part performance of the contract and that a further sum of Rs.1,000/- was paid on 27.01.1983 for which an endorsement was made on the back side of the agreement Ex.A1. 3. It was the further contention of the respondent/plaintiff that possession of the suit property was delivered to him on the date of agreement in part performance of the contract and that a further sum of Rs.1,000/- was paid on 27.01.1983 for which an endorsement was made on the back side of the agreement Ex.A1. 3. The respondent/plaintiff had also contended that even before the expiry of the time stipulated in the agreement he met the deceased first appellant/defendant and her husband and demanded execution of sale deed after receiving the balance sale consideration; that on the other hand, the deceased first appellant/defendant was simply evading execution of the sale deed citing the existence of some encumbrances created by third parties in respect of the suit property and promising to execute the sale deed after clearing the said encumbrances; that the respondent/plaintiff was waiting in the hope that the deceased first appellant/defendant would keep her promise by executing the sale deed after clearing encumbrances, but to his shock and surprise she issued a legal notice on 02.03.1984 informing him that the agreement stood cancelled due to his failure to pay the balance amount of sale consideration on or before the date agreed upon and demanding restoration of possession of the suit property; that a suitable reply to the notice was sent to the deceased first appellant/defendant requiring her to fix a date for execution of the sale deed and inform the respondent/plaintiff and that even after receiving the said reply notice, the deceased first appellant/defendant did not come forward to complete the transaction. The respondent/plaintiff contended further that notices were published in the Newspaper by both of them and subsequent to exchange of such notices he was constrained to file the suit for the relief of specific performance. 4. The suit was resisted by the deceased first appellant/defendant by filing a written statement denying the plaint averments. Even though the plaint averments regarding the suit agreement were denied in paragraph 2 of the written statement, the deceased first appellant/defendant made a specific admission in paragraph 6 of the written statement to the effect that she entered into an agreement with the respondent/plaintiff on 26.01.1986 for the sale of the suit property and received a sum of Rs.1,001/- as advance on the date of agreement itself. On the other hand, it was her contention that she did not deliver possession of the suit property to the respondent/plaintiff in part performance of the contract and that on the other hand, the respondent/plaintiff taking advantage of his position as the owner of the adjacent land, trespassed into the suit property after the date of the suit agreement for sale. The deceased first appellant/defendant contended further that the plaint averments regarding existence of encumbrances and the respondent’s/plaintiff’s readiness and willingness to perform his part of his contract were all false; that the respondent/plaintiff was not actually ready and willing to perform his part of the contract and hence he had not properly pleaded his readiness and willingness to perform his part of the contract and that the respondent/plaintiff should be non-suited for the relief of specific performance of contract prayed for in the suit. 5. The trial Court framed necessary issues and conducted trial, in which the respondent/plaintiff appeared as the sole witness (PW1) on his side and marked 11 documents as Ex.A1 to Ex.A11. The deceased first appellant/defendant was the sole witness (DW1) examined and Ex.B1 was the only document was marked on the side of the defendant. At the conclusion of the trial, on appreciation of evidence, both oral and documentary adduced on either side, the trial Court held that the respondent/plaintiff failed to prove his readiness and willingness to perform his part of the contract and based on such finding, dismissed the suit. On appeal, the learned Principal District Judge, Tirunelveli, reversed the said finding of the trial Court, set aside the decree passed by the trial Court and decreed the suit as prayed for granting the relief of specific performance of contract. Aggrieved by the same, the deceased first appellant/defendant filed the present second appeal before this Court. As she died during the pendency of the second appeal, appellants 2 to 9 got themselves impleaded as legal representatives of the deceased first appellant/defendant and pursued the appeal. 6. This Court heard the arguments advanced by Mr.S.P.Sankaran for Mr.S.Meenakshisundaram, the learned counsel for the appellants and Mr.R.S.Ramanathan the learned counsel for the respondent and paid its anxious considerations to the same. The materials available on record were also perused. 7. 6. This Court heard the arguments advanced by Mr.S.P.Sankaran for Mr.S.Meenakshisundaram, the learned counsel for the appellants and Mr.R.S.Ramanathan the learned counsel for the respondent and paid its anxious considerations to the same. The materials available on record were also perused. 7. Admittedly, the deceased first appellant/defendant was the absolute owner of the suit property having a total extent of 2.22 acres in S.Nos.69/2(part), 70/1(part) and 70/2 in Pappakulam Village, Palayamkottai Taluk, Tirunelveli District. It is also not in dispute that she entered into an agreement for the sale of the suit property with the respondent/plaintiff on 26.01.1983 for an agreed sale consideration of Rs.20,424/- and that a sum of Rs.1,001/- was paid as advance on the date of agreement itself. The said sale agreement is marked as Ex.A1. It contains an endorsement dated 27.01.1983 to the effect that a sum of Rs.1,000/- was paid on the said date as further advance. The payment of the second advance as evidenced by the endorsement has also been admitted. On the other hand, the plaint averment to the effect that the respondent/plaintiff was given possession of the suit property in part performance of the contract on the date of agreement itself had been disputed by the deceased first appellant/defendant. It is true that there is no recital either in Ex.A1-agreement or in the endorsement dated 27.01.1983 to the effect that possession of the suit property was delivered to the purchaser in part performance of the contract. However, the deceased first appellant/defendant had admitted that the suit property was in possession and enjoyment of the respondent/plaintiff subsequent to the date of agreement and on the other hand, she would state that the respondent/plaintiff, taking advantage of his position as the owner of the adjacent land, trespassed in to the suit property and occupied it subsequent to the suit agreement-Ex.A1. Had it been true, she would not have failed to take action against the alleged high handed act on the part of the respondent/plaintiff. At least, she would have issued a legal notice. Admittedly, the deceased first appellant/defendant did not take such steps. Except the party witnesses examined as PW1 and DW1 respectively, no independent witness has been examined on either side regarding the plaint averment of the alleged delivery of possession of suit property is part performance of the contract. 8. At least, she would have issued a legal notice. Admittedly, the deceased first appellant/defendant did not take such steps. Except the party witnesses examined as PW1 and DW1 respectively, no independent witness has been examined on either side regarding the plaint averment of the alleged delivery of possession of suit property is part performance of the contract. 8. A close scrutiny of the oral and documentary evidence adduced on both sides and the admission made by the deceased first appellant/defendant to the effect that she did not take any action against the respondent/plaintiff for the alleged encroachment would make the plea of the respondent/plaintiff more probable than that of the deceased first appellant/defendant. The production of Ex.A2-patta pass book by the respondent/plaintiff from his custody will probablise his case that in token of delivery of possession of the suit property in part performance of the contract, Ex.A2 was handed over to him. Ex.A3 is the certified copy of Chitta extract relating to the suit property for the Fasili 1391. The chitta was prepared on 09.07.1981 and its certified copy was issued on 11.04.1983. The deceased first appellant/defendant, while deposing as DW1, clearly admitted that it was she who handed over Ex.A2-patta pass book to the respondent/plaintiff. However, she pleaded ignorance as to whether Ex.A3-certified copy of chitta was given to the respondent/plaintiff by her. The case of the respondent/plaintiff is that since Ex.A2-patta pass book contained only one of the survey numbers relating to the suit property and two of the survey numbers were missing, Ex.A3-Chitta extract was obtained and handed over by the deceased first appellant/defendant to show that she had title to the entire suit property. The evidence of PW1 in this regard seems to be quite natural and believable. As there is no specific denial of the assertion made by PW1 regarding Ex.A3, the necessary inference shall be that Ex.A3-Chitta register extract was also obtained by the deceased first appellant/defendant and handed over to the respondent/defendant in the circumstances stated by PW1. The lower appellate Court properly appreciated the evidence in this regard and came to the correct conclusion that the respondent/plaintiff was given possession of the suit property on the date of Ex.A1 itself in part performance of the contract for sale. The said finding cannot be termed defective, infirm or perverse. The lower appellate Court properly appreciated the evidence in this regard and came to the correct conclusion that the respondent/plaintiff was given possession of the suit property on the date of Ex.A1 itself in part performance of the contract for sale. The said finding cannot be termed defective, infirm or perverse. As the lower appellate Court is the final Court of appeal on facts, there is no scope for interference in this second appeal with its finding regarding the delivery of possession in part performance of the contract pleaded by the respondent/plaintiff in the plaint. Moreover, the learned counsel for the appellants fairly conceded that the said finding of the lower appellate Court could not be challenged as the same was supported by evidence and that the challenge made to appellate Court’s judgment and decree would be confined to the question of proof of readiness and willingness on the part of the respondent/defendant to perform his part of the contract under the suit agreement for sale and the discretion of Court under Section 16 of the Specific Relief Act, 1963. Hence, the finding of the lower appellate Court that the respondent/plaintiff was put in possession on the date of Ex.A1 itself in part performance of the contract has got to be confirmed. 9. The substantial question of law framed at the time of admission of the second appeal is as follows;- “Whether the conclusion of the appellate Court that the respondent/plaintiff is entitled to the equal relief of specific performance is legally sustainable?" The said question is more or less general in nature and it contains:- 1) the question of genuineness, validity and enforceability of the said agreement; 2) the question of readiness and willingness on the part of the respondent/plaintiff ;and 3) the question of exercise of discretion of the Court in granting the relief of specific performance. In the instant case, there is no dispute regarding the genuineness, validity and legal enforceability of Ex.A1 agreement of sale. The plea of the respondent/plaintiff regarding his readiness and willingness to perform his part of the contract had been challenged by the deceased first appellant/defendant. In the instant case, there is no dispute regarding the genuineness, validity and legal enforceability of Ex.A1 agreement of sale. The plea of the respondent/plaintiff regarding his readiness and willingness to perform his part of the contract had been challenged by the deceased first appellant/defendant. She had raised a contention in her written statement that the respondent/plaintiff would not be entitled to the relief of specific performance as he had not complied with the requirements of making a specific plea regarding his readiness and willingness to perform his part of the contract as found in Section 16 (c) of the Specific Relief Act, 1963. Section 16(c) of the Specific Relief Act, 1963, says that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which have been prevented or waived by the defendant. 10. It was the contention of the deceased first appellant/defendant that the respondent/plaintiff who was in possession and enjoyment of the suit property did not evince interest in parting with the balance amount of sale consideration and completing the transaction. In fact there was no specific averment in the original plaint to the effect that the respondent/plaintiff had been ready and willing to perform his part of the contract. viz., to make payment of the balance consideration and get the sale deed executed in his favour. This particular defect was pointed out by the deceased first appellant/defendant in her written statement it was her specific contention that the respondent/plaintiff would not be entitled to the relief of specific performance as there was no compliance with the requirement of Section 16(c) of the Specific Relief Act, 1963. Pursuant to the said defence plea made by the deceased first appellant/defendant, the plaint was amended, of course after getting an order of the Court for such amendment, and thereby the necessary plea regarding the respondents/plaintiffs readiness and willingness to perform his part of the contract right from the date of agreement was incorporated. Pursuant to the said defence plea made by the deceased first appellant/defendant, the plaint was amended, of course after getting an order of the Court for such amendment, and thereby the necessary plea regarding the respondents/plaintiffs readiness and willingness to perform his part of the contract right from the date of agreement was incorporated. In the light of the above said pleadings found in the plaint, the learned Subordinate Judge, Tirunelveli framed a necessary issue regarding the readiness and willingness on the part of the respondent/plaintiff and decided the said issue against him and in favour of the deceased first appellant/defendant. In the appeal preferred against the judgment and decree of the trial Court, the lower appellate Judge namely, Principal District Judge, Tirunelveli reversed the said finding of the trial Judge and held that the respondent/plaintiff had proved his readiness and willingness to perform his part of the contract. 11. The learned counsel for the appellants in this second appeal argued that the lower appellate Judge committed an error in reversing the well considered finding of the trial Court regarding the proof of readiness and willingness on the part of the respondent/plaintiff; that the reasons assigned by the lower appellate Court for reversing the finding of the trial Court were not sound and that though as a general Rule the second appellate Court should not interfere with a finding of fact recorded by the lower appellate Court which is the final court of appeal on facts, the finding of the lower appellate Court in the instant case regarding the question of readiness and willingness was perverse and hence there was every reason for this Court to interfere with the said finding of the lower appellate Court and set right the mistake committed by it. The learned counsel for the appellants contended further that as per the terms of the agreement, the sale transaction should have been completed on or before 23.04.1983 (10th day of Chithrai); that the respondent/plaintiff had not proved to be ready and willing to pay the balance amount of sale consideration and get the sale deed executed before the said date; that the respondent/plaintiff who was enjoying the property after paying a meagre sum of Rs.2,001/-, did not show any interest in completing the transaction and on the other hand, was bent upon finding some ruse for not completing the sale transaction within the time stipulated in the agreement and that even thereafter till the filing of the suit, he was not ready and willing to pay the balance consideration and take the sale deed. According to the submission made by the learned counsel for the appellants, the respondents/plaintiffs reluctance to come forward to complete the transaction is revealed by the fact that he was setting up imaginary and non-existent encumbrances and that even in the plaint he had prayed for a decree directing the deceased first appellant/defendant to clear the encumbrances and then execute the sale deed after receiving the balance consideration. 12. Per contra, the learned counsel for the respondent/plaintiff would contend that in fact there was an admission on the part of the deceased first appellant/defendant that some encumbrances had been created by the joint pattadaars in favour of Kalungu Peer Adimai and Kalungu Mohammed Younus; that the said encumbrances created by third parties in respect of a portion of the suit property came to the knowledge of the respondent/plaintiff through a Public notice published by the advocate of the deceased first appellant/defendant in “Dinamalar” Newspaper and that hence the respondent/defendant was justified in demanding clearance of the said encumbrances and execution of the sale deed in his favour thereafter. The learned counsel for the respondent/plaintiff contended further that in fact, there were some documents executed by the other joint pattadaars concerning portions of the suit property which amounted to encumbrances; that on verification with the Registration Department, the respondent/plaintiff came to know the existence of such encumbrances and that hence the respondent/plaintiff had been requesting the deceased first appellant/defendant to clear the encumbrances at first and then execute the sale deed in favour of the respondent/plaintiff. The learned counsel for the respondent/plaintiff also contended that in fact the deceased first appellant/defendant admitted the existence of such encumbrances and promised to execute the sale deed after clearing the encumbrances and that hence the respondent/plaintiff was very much justified in demanding clearance of encumbrances before execution of sale deed. 13. It is true that a purchaser under an agreement for sale is entitled to ask the vendor to satisfy him/her regarding the title of the vendor before execution of the sale deed. If at all there is any encumbrance created by the vendor or by a person from whom the vendor has derived his/her title, demanding clearance of such encumbrance before completion of the sale transaction shall be quite reasonable. In case the encumbrance is one created by operation of law or by an order of Court pursuant to the failure on the part of the vendor to perform an obligation, then the demand by the purchaser to fulfill such an obligation so as to have such an encumbrance cleared shall also be reasonable. On the other hand, a document created by a third party claiming title adverse to that of the vendor under the agreement for sale shall not be construed as an encumbrance created by the vendor, so that he/she could be expected to clear the said encumbrance. The said document, at best, could amount to a fact that a third party has claimed title in respect of the suit property which is inconsistent with the absolute title of the vendor under the agreement for sale. In such circumstances when the vendor contends that the said third party does not have any such right or title and that the vendor is the absolute owner of the property, it is for the purchaser under the agreement for sale to satisfy himself regarding the title of the vendor and take a decision either to proceed or not to proceed with the said transaction. The position may be different if the vendor under the agreement for sale makes a promise citing specific encumbrances created by the third parties to clear the same, in which case the purchaser will be justified in demanding clearance of such encumbrances. 14. The position may be different if the vendor under the agreement for sale makes a promise citing specific encumbrances created by the third parties to clear the same, in which case the purchaser will be justified in demanding clearance of such encumbrances. 14. A party to an agreement who pleads existence of encumbrances as an excuse for not performing his part of the obligation under the contract till the clearance of such encumbrances, is bound to prove the same. In this regard, the learned counsel for the appellants argued that in fact there was no encumbrance as alleged by the respondent/plaintiff; that the respondent/plaintiff had failed to prove any kind of encumbrance to be cleared by the deceased first appellant/defendant and that the lower appellate Court erred in holding that the respondent/plaintiff had proved the existence of encumbrances. Per contra, the learned counsel for the respondent/plaintiff contended that there was no dispute regarding the title of the vendor under Ex.A1 agreement but a cloud had been cast on her title by her own publication made in the Newspaper on 09.08.1983 marked as Ex.A4; that the deceased first appellant/defendant promised to clear the cloud and then execute the sale deed but subsequently failed to keep the said promise; that the deceased first appellant/defendant as DW1 clearly admitted the existence of such encumbrances which were, according to her admission, cleared only after the filing of the suit and that hence the demand made by the respondent/plaintiff for the clearance of encumbrances before the execution of the sale deed was perfectly legal and bonafide. 15. In response to the said argument that DW1 herself admitted that there were encumbrances and the same were cleared only after filing of the suit, the learned counsel for the appellants submitted that there was no such admission; that even assuming that there was such an admission, the same would not amount to conclusive proof of the fact admitted therein and that the evidence available on record would be enough to show that the encumbrances allegedly admitted by DW1 were pertaining to some other properties and not to the suit properties. It was the further contention of the learned counsel for the appellants that Ex.B1 and Ex.B2 would clearly establish the absence of any encumbrance in the suit property. It was the further contention of the learned counsel for the appellants that Ex.B1 and Ex.B2 would clearly establish the absence of any encumbrance in the suit property. According to him, there were clear recitals in Ex.B1, the sale deed under which the share of the joint pattadaar was purchased in the name of the wife of the respondent/plaintiff, to the effect that the suit properties had been allotted to DW1 (the deceased first appellant/defendant) in a registered partition deed dated 20.08.1983 registered as document No.1530 of 1983 on the file of the Sub Registrar, Morapanadu and the said document was the one referred by DW1 in her evidence as the document by which the encumbrances created in favour of third party were cleared. According to the submissions made by the learned counsel for the appellants, DW1 while answering a suggestion made by the learned counsel for the respondent/plaintiff, by mistake, stated in her evidence that the encumbrance was cleared only after filing of the suit and that in fact the dispute between the joint pattadars were amicably settled in the year 1983 itself by effecting a partition under a registered deed. 16. Let us now consider the above said submissions made by the learned counsel on either side. It is not a fact in dispute that the parties entered into an agreement between themselves for the sale of the suit property. The total extent of the suit property is as under:- Eastern half of the S.No.69/2 : 0.21 acres Eastern half of the S.No.70/1 : 0.75 acres Entire extent of S.No.70/2 : 1.26 acres _______________________________________ Total extent : 2 .22 acres _____________________________________ 17. Ex.A1 agreement for sale came to be executed on 26.01.1983. It was agreed between the parties that the sale transaction should be completed on or before 23.04.1983 (10th da of Chithirai of the tamil year 1158). Even though the respondent/plaintiff might have contended that there were encumbrances created by the third parties in respect of the suit property, he has not come out with a true version as to the source or sources from which he got the information regarding existence of the said encumbrances. At one point of time, the respondent/plaintiff would state that he verified in the office of the Sub Registrar without applying for an encumbrance certificate and found out that there were encumbrances created in respect of the suit property. At one point of time, the respondent/plaintiff would state that he verified in the office of the Sub Registrar without applying for an encumbrance certificate and found out that there were encumbrances created in respect of the suit property. At another place he has stated that the existence of the encumbrances was brought to his knowledge only by the paper publication issued by Mr. C.P. Sankaran, advocate on behalf of the deceased first appellant/defendant in “Dinamalar” Newspaper dated 09.08.1983 and that only thereafter he approached the deceased first appellant/defendant. 18. The learned counsel for the appellants has pointed out the contradictions found in the above said statements of the respondent/plaintiff. Upon perusing the records, this Court is satisfied that there is such a contradiction. The lower appellate Judge has completely failed to notice the above said aspect while deciding to reverse the finding of the trial Court regarding the existence of encumbrances and the date on which the respondent/plaintiff got the knowledge of the same. A clever plea has been incorporated in the plaint to the effect that soon after the respondent/plaintiff came to know that there were encumbrances, he approached the deceased first appellant/plaintiff and requested her to clear the encumbrances and then execute the sale deed. But curiously the plaint is bereft of particulars as to when the respondent/plaintiff came to know the existence of encumbrances and on which date the respondent/plaintiff approached the deceased first appellant/defendant. The source of information regarding the existence of encumbrances has also not been stated in the plaint. 19. In this regard, the evidence of PW1 is to the effect that he met the deceased first appellant/defendant after 15th day of Panguni of Tamil year 1158 (after 29.03.1983). Therefore, according to his evidence he verified with the Registration Department regarding encumbrances before the said date. But he has failed to produce any encumbrance certificate before the trial Court to show that there were encumbrances in respect of the suit property. He has also admitted in his evidence that he did not issue any notice before the deceased first appellant/defendant issued Ex.A5 notice on 02.03.1984 informing him that the agreement stood cancelled. Only after receipt of the said notice, the respondent/plaintiff came out with a plea that portions of items 1 and 2 had also been sold away by one Anandan @ Anandachiar to Kalungu Peer Adimai and Kalungu Mohammed Younus. Only after receipt of the said notice, the respondent/plaintiff came out with a plea that portions of items 1 and 2 had also been sold away by one Anandan @ Anandachiar to Kalungu Peer Adimai and Kalungu Mohammed Younus. The reply notice dated 22.03.1984, a copy of which has been marked as Ex.A6, does not contain any averment to the effect that on verification with the office of the Sub Registrar, the respondent/plaintiff found out the existence of encumbrances. On the other hand, the contents of the said notice create confusion as to whether the respondent/plaintiff got the knowledge of the existence of encumbrances in respect of the suit property pursuant to the publication of a notice by the deceased first appellant/defendant in ‘Dinamalar’ Newspaper on 09.08.1983 or even before the said publication. A careful consideration of the pleadings and evidence will go to show that the respondent/plaintiff has tried to put forward a new plea while deposing as PW1 as if he verified in the office of the Sub Registrar before 29.03.1983 and found out the existence of encumbrance. In this regard the evidence of PW1 is not trustworthy. At one place he has stated that without asking for an encumbrance certificate, he verified in the office of the Sub Registrar and found out the existence of encumbrance. But it is curious to note that even after coming to know that there were encumbrances, he did not choose to apply for an encumbrance certificate to be shown to the deceased first appellant/defendant. At another place PW1 has stated that he applied for encumbrance certificate, got it and perused it before 29.03.1983 (15 th day of Panguni 1158) 20. PW1 has also admitted in his evidence that before Ex.A6 reply notice, he did not inform in writing either the deceased first appellant/defendant or any other person regarding the existence of encumbrances. It should also be noticed that the respondent/plaintiff did not produce any encumbrance certificate in the trial Court. On the other hand, the deceased first appellant/defendant had produced a certified copy of a sale deed dated 05.07.1984 under which the western half of S.No.69/2 and 55 cents out of the western half of S.No.70/1 were purchased by Shanmugasundariammal the wife of the respondent/plaintiff. On the other hand, the deceased first appellant/defendant had produced a certified copy of a sale deed dated 05.07.1984 under which the western half of S.No.69/2 and 55 cents out of the western half of S.No.70/1 were purchased by Shanmugasundariammal the wife of the respondent/plaintiff. In the said sale deed itself it has been clearly stated that the eastern half of S.No.69/2 measuring 21 cents and the eastern half of S.No.70/1 measuring 75 cents belonged to Sreeranganachiar, the deceased first appellant/defendant and that the said lands were allotted to her in the partition that took place under a registered partition deed dated 20.08.1983 bearing document No.1533 of 1983. 21. From Ex.B1 it is quite obvious that even before 05.07.1984 the respondent/defendant should have known that the suit properties absolutely belonged to the deceased first appellant/defendant and that what ever encumbrances that might have been created had been cleared. Even, after knowing that all the encumbrances found in respect of the suit property had been cleared on 20.08.1983 itself by virtue of a sale deed executed in favour of Saraswathiammal by Kalungu Peer Adimai and Kalungu Mohammed Younus and by virtue of an even dated registered partition deed between Saraswathiammal and the deceased first appellant/defendant, the respondent/plaintiff simply suppressed the said fact and filed the suit in the year 1986 contending that on the date of suit there were encumbrances and incorporating a prayer for directing the deceased first appellant/defendant to clear the encumbrances and then execute the sale deed. In such circumstances alone the deceased first appellant/defendant chose to produce Ex.B1 under which the western portions of S.Nos.69/1 and 70/2 were purchased by the wife of the respondent/plaintiff. It contains clear recitals to the effect that the eastern halves of the said survey numbers had been allotted to Sreeranganachiar, the deceased first appellant/defendant under the registered partition deed dated 20.08.1983. 22. During the pendency of the appeal before the lower appellate Court, by way of abundant caution, the deceased first appellant/defendant produced Ex.B2 encumbrance certificate for 15 years from 1980 to 1994 to show that the eastern halves of S.Nos.69/2 and 70/1 had been allotted to her share in the partition dated 20.08.1983 and that thereafter there was no encumbrance. There is no dispute regarding the absence of any encumbrance in respect of S.No.70/2. There is no dispute regarding the absence of any encumbrance in respect of S.No.70/2. The respondent/plaintiff claimed that there were encumbrances even as on the date of plaint in respect of S.Nos.69/2 and 70/1 and the same were found cleared subsequent to the filing of the suit. Only during the pendency of the appeal, the respondent/plaintiff chose to produce the encumbrance certificate for 19 years from 1976 to 1994. The same has been marked as Ex.A12. 23. From Ex.A12 it is quite obvious that only in respect of S.No.70/1 there was a sale deed executed by Anandan @ Anandchari and Sundariammal in the year 1976 in favour of Kalungu Peer Adimai. Admittedly, the said vendors under the 1976 document and the deceased first appellant/defendant were joint pattadaars and the deceased first appellant/defendant was entitled to half share in survey numbers S.No.69/2, S.No.70/1 and the entire extent in S.No.70/2. Claiming to be entitled to the entire extent in S.No.70/2 and the eastern halves of S.Nos.70/1 and 69/2, the deceased first appellantdefendant executed Ex.A1-suit agreement on 26.01.1983. However, when it transpired that the the joint pattadars Anandan @ Anandachari and Sundariammal had executed a sale deed on 09.04.1976 in favour of Kalungu Peer Adimai regarding entire extent of 1.50 acres in S.Nos.70/1 including the share of Sreeranganachair (the deceased first appellant/defendant), she chose to issue a public notice in “Dinamalar” Newspaper on 09.08.1983. Pursuant to the said notice in “Dinamalar” the eastern half of S.No.70/1 was conveyed under a sale deed dated 20.08.1983 to Saraswathiammal and on the same date Saraswathi ammal agreed for allotting the eastern half of the S.No.70/1 and the eastern half of S.No.69/2 to the share of the deceased first appellant/defendant (Sreeranganachiar). 24. It is quite obvious from Ex.A12 there was no encumbrance at all in respect of S.Nos.69/2 and 70/2 and the only encumbrance that had been created in 1976 in respect of S.No.70/1 was cleared on 20.08.1983 itself. Therefore, as on the date of Ex.A5 notice and on the date of Ex.A6 reply notice, there was no encumbrance in respect of the suit property. Especially on the date of suit there was no encumbrance in respect of any portion of the suit property. Therefore, as on the date of Ex.A5 notice and on the date of Ex.A6 reply notice, there was no encumbrance in respect of the suit property. Especially on the date of suit there was no encumbrance in respect of any portion of the suit property. In this case, it is pertinent to note that under Ex.A6 reply notice issued after the above said partition dated 20.08.1983, the respondent/plaintiff had demanded that the deceased first appellant/defendant should clear the encumbrances and then execute the sale deed. It has already been pointed out that on 05.07.1984 (date of Ex.B1), the respondent/plaintiff had got the knowledge that the cloud cast over the title of the deceased first appellant/defendant had been cleared long back on 20.08.1983 itself. The respondent/plaintiff who figured as the sole witness on the side of the plaintiff has simply bluffed as if he and his wife were living separately and as such he was not aware of the dealings of his wife and that hence no knowledge could be imputed to him regarding the recitals found in Ex.B1 sale deed. The relevant portion of testimony of PW1 is extracted hereunder: <span class="Hfont"> "fpiua xg;ge;jj;jpy; fz;l 1,2 ndr;brhj;Jf;fspy; fPH; gFjpfisg; bghW[j;J vdf;F xg;ge;j Bky; gFjpfis vd; kditp fpiuak; thA;fpapUg;gJ bjhpahJ. Rkhh; 3.4 tUlkha; gphpe;J nUf;fpBwhk;. gphpfpwjw;F Kd;dhy; vA;fSf;Fs; jfuhW nUe;jJ. vd; kidtp fpiuak; thA;fpapUg;gJ vdf;F xUtUlj;jpw;FKd; jhd; bjhpa[k;. mjd;gpd; A comparison of the above said testimony with the particulars found in Ex.B1 reveals that PW1 has not come out with the truth and has denied knowledge of the sale deed knowing fully well that the particulars found therein are totally against his contention in this case. It is also noticed that the sale consideration under the said sale deed (Ex.B1) was paid by the respondent/plaintiff on behalf of his wife and it was he who signed before the Sub Registrar on behalf of the purchaser under Ex.B1. However, the respondent/plaintiff has chosen to file the suit suppressing the said fact and demanding that the defendant should be directed to clear the encumbrances at first and then execute the sale deed. However, the respondent/plaintiff has chosen to file the suit suppressing the said fact and demanding that the defendant should be directed to clear the encumbrances at first and then execute the sale deed. From the fact that the respondent/plaintiff filed the suit after a lapse of nearly two years from the date of Ex.B1 sale deed, praying for a decree directing the respondent to clear the encumbrances and then execute the sale deed will go to show that the respondent/plaintiff was not inclined to part with the money and on the other hand was determined to protract the matter as long as possible. 25. The mere fact that the suit has been filed within the period of limitation will not be enough to establish that the plaintiff has been ready and willing to perform his part of the contract. As pointed out supra, it is quite obvious that there was no encumbrance in respect of S.Nos.69/2 and 70/2 and that the only encumbrance found in respect of S.No.70/1 had been cleared long back on 20.08.1983 itself. This fact very much came to the knowledge of the respondent/plaintiff on 05.07.1984, the date of Ex.B1. Thereafter insisting upon the clearance of the encumbrance which was not in existence subsequent to 20.08.1983, will show the lack of bonafide and absence of readiness and willingness on the part of the respondent/ plaintiff to perform his part of the contract. The learned trial Judge considered the evidence properly and came to the correct conclusion that the respondent/plaintiff had not proved his readiness and willingness through out from the date of agreement, to perform his part of the contract. On the other hand the learned lower appellate Judge has not properly appreciated the fact that the respondent/plaintiff as PW1 has denied knowledge of the purchase of the western portions of S.Nos.69/2 and 70/1 by his wife under Ex.B1 sale deed. The lower appellate Court has misdirected itself in not properly appreciating the documentary evidence in Ex.B1, Ex.B2 and Ex.A12 which go to show that the clearance of encumbrance in respect of the suit property had been brought to the notice of respondent/plaintiff long before the filing of the suit and that despite the same, the respondent/ plaintiff had chosen to file the suit as if there were encumbrances. 26. 26. The lone aspect pointed out against the appellants is that the defendant, while deposing as DW1, had admitted that there were encumbrances created by the joint pattadars in favour of third parties and the same were cleared only after filing of the suit. Of course DW1 has made such an admission during the cross-examination. But it was an answer given in the affirmative for a suggestion made by the plaintiffs counsel to the effect that the encumbrances created in favour of the Musalman was cleared after the filing of the suit and that only thereafter the partition was effect. The relevant portion is extracted for the sake of convenience:- <span class="Hfont"> "@ne;j tHf;F bjhLf;fg;gl;l gpd;dh; vdf;Fk; Tl;Lg;gl;lh jhuh; btA;fBlrDf;Fk; ghfg;gphptpid Mfptpl;lJ. jhthr; brhj;J rk;ge;jkhf kJiuapy; cs;s rhag[f;F nUe;j tpy;yA;fk; ne;j tHf;F bjhLf;fg;gl;l gpd;dh; jPh;ffg;gl;Ltpl;L, mjd; gpd;dh; ghfg;gphptpid bra;ag;gl;lJ vd;gJ rhpjhd;.@" The above said extracted portion of the testimony of DW1 has been relied on by the counsel for the respondent/plaintiff to show even on the date of suit there was an encumbrance and the same was cleared thereafter. It is well known principle of law that admission may be the best piece of evidence, but it will not amount to conclusive proof. The fact admitted can be proved to be false or erroneous. In order to prove a fact admitted by a party to be false or erroneous, it is not necessary that the party must rely on the oral evidence alone. On the other hand he/she can rely on the documents to show that the fact admitted was false or could not be true. In this case as pointed out earlier there are clear documentary evidence, which show that the alleged encumbrance relied on by the respondent/plaintiff, viz., the one created in favour of one Kalungu Peer Adimai had been cleared on 20.08.1983. The suit was filed in the year 2006. Hence it is patent that the admission made by DW1, in this regard, by giving an affirmative answer to the suggestion made by the counsel for the plaintiff during cross examination, as if the encumbrance was cleared after the filing of the suit and only thereafter partition was effected, is erroneous. The fact remains that the said encumbrance was cleared and partition was effected on one and the same date, namely 20.08.1983, that is long before the filing of the suit (two years and eight months). The fact remains that the said encumbrance was cleared and partition was effected on one and the same date, namely 20.08.1983, that is long before the filing of the suit (two years and eight months). Therefore, the argument advanced by the learned counsel for the respondent/plaintiff based on the alleged admission cannot be countenanced. 27. Admittedly, the respondent/plaintiff is in possession of the property. The submission made on behalf of the appellants that the respondent having got the possession did not evince interest in completing the transaction by parting with the balance consideration and that is the reason why he was bent upon protracting the case as long as possible and that the same happened to be the reason why the respondent/plaintiff has chosen to file the suit with a prayer for a direction to the defendant to discharge the non-existent encumbrance and then execute the sale deed, has got to be accepted. 28. Therefore, it is quiet clear that even after coming to know that the cloud created on the title of the deceased first appellant/defendant was cleared , the respondent/plaintiff had chosen to file the suit as if he was not aware of such clearance of such encumbrances. Further more, he has gone to the extent of denying the knowledge of Ex.B1 sale deed and contended that the encumbrances existed even after filing of the suit and were cleared only during the pendency of the suit. Falsity of the said contention has been demonstrated supra and the same will show the malafide and lack of bonafide on the part of the respondent/plaintiff. A person seeking the equitable remedy of specific performance should have come to the Court with clean hands. The facts pointed out above will show that the respondent/plaintiff has not come to the Court with clean hands. As per Section 16 of the Specific Relief Act, 1963 even if the plaintiff/respondent has fulfilled the conditions found in Section 16 (c) of the Specific Relief Act, 1963, the Court does have a discretion either to grant or refuse the relief of specific performance. Of course, the discretion is not an arbitrary and unguided one. As per Section 16 of the Specific Relief Act, 1963 even if the plaintiff/respondent has fulfilled the conditions found in Section 16 (c) of the Specific Relief Act, 1963, the Court does have a discretion either to grant or refuse the relief of specific performance. Of course, the discretion is not an arbitrary and unguided one. The circumstances, pointed out supra will show that the respondent/plaintiff has not only approached the Court with unclean hands but also put forward a claim that the appellants should clear the encumbrances and then execute the sale deed even after he came to know that the doubts created over the title of the deceased first appellant/defendant had been cleared. The same will be sufficient to warrant the exercise of the discretion against the respondent/plaintiff. For that reason alone, this Court comes to the conclusion that the respondent/plaintiff shall not be entitled to the relief of specific performance. 29. It has been observed by a Division Bench of Madras High Court in "PUSHPARANI SHANMUGHASUNDARAM vs. PAULINE MANONMANI JAMES reported in ( 1993 (1) LW 219 ) that a mere reiteration of the words of the statute as to the readiness and willingness is not the required averment under Section 16(c) of the Specific Relief Act. Another Division Bench of Madras High Court in BINNY LIMITED vs. M/S.V.JAGANNATHAN & CO reported in (2003) 1 MLJ 501 has observed that readiness and willingness has to be established in unequivocal terms and that the plaintiff who has not come to the Court with clean hands shall not be entitled to the relief of specific performance. The Honourable Supreme Court in K.S.VIDAYANADAM vs. VAIRAVAN reported in (AIR 1997 SCC 1751) observed that the total inaction on the part of the purchaser for 2 1/2 years and the delay coupled with substantial rise in the price of the property was a sufficient ground for declining the relief of specific performance and it would be inequitable to give the relief in such cases. 30. The ratio decidendi laid down in all the above said cases squarely apply to the facts of the instant case. 30. The ratio decidendi laid down in all the above said cases squarely apply to the facts of the instant case. If the facts of the present case are considered in the light of the above cited precedents, one shall came to the conclusion that the respondent/plaintiff has not proved his readiness and willingness to perform his part of the contract under Ex.A1 agreement; that he has not come to the Court with clean hands and that the inaction for more than two year after Ex.A5 notice will also disentitle him to relief of specific performance. 31. For all the reasons stated above, this Court comes to the conclusion that the respondent/plaintiff has not proved his readiness and willingness to perform his part of the contract under Ex.A1 suit agreement for sale; that the lower appellate Court has given a perverse finding in this regard and that the same has got to be reversed by this Court. As a necessary corollary, this Court also comes to the conclusion that the respondent/plaintiff shall not be entitled to get the relief of specific performance. 32. This Court has come to the conclusion as indicated above that the respondent/plaintiff is not entitled to the relief of specific performance as prayed for in the plaint. But it is not disputed by the appellants/defendants that the respondent/plaintiff had paid a sum of Rs.2,001/- as advance. The appellants have not come forward with any plea that they suffered any damage or that they are entitled to the forfeiture of the advance amount or adjustment of the advance amount towards compensation. Hence, this Court feels it just and necessary to hold that the respondent/plaintiff shall be entitled to the return of the said advance amount. The respondent/plaintiff has admitted that he has been in possession and enjoyment of the suit property right from the date of suit agreement. Therefore, there cannot be any direction for payment of interest for the advance amount till he redelivers possession of the suit property. However, the learned counsel for the appellants showed his magnanimity by conceding that the advance amount may be directed to be refunded together with reasonable interest. Therefore, there cannot be any direction for payment of interest for the advance amount till he redelivers possession of the suit property. However, the learned counsel for the appellants showed his magnanimity by conceding that the advance amount may be directed to be refunded together with reasonable interest. Hence, this Court hereby comes to a conclusion that the respondent/plaintiff shall be entitled to the refund of the advance amount of Rs.2,001/- with interest at the rate of 6% per annum from 27.01.1983 till the date of suit and a further interest at the very same rate till realisation. However it is pointed out that the respondent/plaintiff has not made specific claim for the refund of the advance amount with interest. Section 22(2) of the Specific Relief Act, 1963, says that such a relief cannot be granted by the Court unless it has been specifically claimed. But the proviso says that at any stage of the proceedings the plaintiff can be allowed to amend the plaint for including the claim of such relief. Therefore it is hereby clarified that the plaintiff is given leave to amend the plaint and include the claim for refund of the advance amount. 33. In the result, this second appeal is allowed and the judgment and decree of the lower appellate court dated 07.09.1994 made in A.S.No.128 of 1992 are set aside. Original suit shall stand dismissed, so far as the relief of specific performance is concerned. However, there shall be a direction against the appellants/defendants for the refund of the advance amount of Rs.2,001/-(Rupees two thousand and one only) together with an interest calculated at the rate of 6% per annum from 27.01.1993 till the date of plaint and a further interest at the very same rate from the date of plaint till realization. There shall be no order as to costs.