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2008 DIGILAW 1545 (MAD)

K. M. Mohideen Pitchai v. K. M. Mohamed Abubacker

2008-05-28

S.PALANIVELU

body2008
JUDGMENT This appeal has been preferred against judgment and decree dated 05.07.2000 made in A.S.No.48 of 1999 on the file of Additional Sub court, Tenkasi confirming the judgment and decree dated 26.02.1999 made in O.S.No.22 of 1998 on the file of District Munsif Court, Senkottai. 2. The averments contained in the plaint may succinctly be described as follows: The suit property belongs to the 1st respondent by means of registered gift deed dated 07.12.1977. Since the 1st respondent was making arrangements to go to foreign countries for employment for which he needed money, he agreed to sell the suit property to the appellant for a sum of Rs.1800/-and received the said amount from the appellant in January 1982. In pursuance of the oral agreement of sale, the 1st respondent entrusted the possession of the property to the appellant and he also handed over the title deed of the property namely the gift deed dated 07.12.1977 to the appellant. The 1st respondent also agreed to execute the sale deed and register the same when the appellant demanded. As the possession of the property was handed over and considering the relationship with the 1st respondent, the appellant also agreed to the above said arrangement, in view of the sale agreement which can be ascertained from the letters sent by the 1st respondent addressed to the appellant on 30.10.1984 and 17.08.1985. Further one Mappillai Kani and Chokkaiya Devar also knew about the agreement of sale. The appellant has leased the suit property as well as a portion to Kadar Ammal Beevi to run a Saw Mill. He also obtained patta for the suit property. In spite of repeated demands by the appellant for the execution of sale deed, the 1st respondent has been delaying the execution of the sale deed. Both the respondents have connived together and decided to create some documents to defraud the appellant. On 27.12.1993 the appellant issued a notice to both the respondents demanding execution of sale deed and required the 2nd respondent not to enter in any transaction with the 1st respondent with respect to the suit property. On 08.01.1994 both the respondents issued reply notice containing false allegations. On 27.12.1993 the appellant issued a notice to both the respondents demanding execution of sale deed and required the 2nd respondent not to enter in any transaction with the 1st respondent with respect to the suit property. On 08.01.1994 both the respondents issued reply notice containing false allegations. The averment is to the effect that since the appellant, being the son of aunt of 1st defendant/ 1st respondent, was permitted to supervise his properties and taking advantage of that the appellant had removed stealthily the document, is not true. It is also not correct to state that in 1982 the suit property was worth about Rs.20,000/-. After the reply notice it appears that the 1st respondent has executed the sale deed in favour of the 2nd respondent regarding the suit property. Hence the suit is for specific performance of contract, for permanent injunction and for costs as well. 3. The allegation found in the written statement filed by both the respondents may tersely be stated as follows: The suit is not maintainable in law and on facts. It is false to allege that the 1st respondent requested the appellant to get his property for sale consideration for Rs.1,800/- in January 1982 for which he also agreed to execute sale deed, when he returned to India, that the 1st respondent handed over the gift deed to the appellant and that the possession of the suit property was also delivered to the appellant. The appellant is the 1st respondent's father's sister son. Since the 1st respondent had to go abroad for employment, he asked the appellant to supervise his property. As the appellant had not cared properly, the 1st respondent asked him to leave the property in the year 1990. Taking advantage of the absence of the 1st respondent in India the appellant stealthily removed the records from the house of the 1st respondent. When the 1st respondent was in abroad the appellant wrote letters to him requesting him to sell the suit property to him for which the 1st respondent replied stating that if he was to sell the property he would sell the same to the appellant alone. The 1st respondent did not go to foreign country in January 1982 but only in May 1983, he left for other countries. In 1982 the market value of the property was Rs.20,000/- and presently it is worth about Rs.40,000/-. The 1st respondent did not go to foreign country in January 1982 but only in May 1983, he left for other countries. In 1982 the market value of the property was Rs.20,000/- and presently it is worth about Rs.40,000/-. Since the plaint is bereft of the particulars with regard to sale agreement, it would show the ulterior motive on the part of the appellant. After 1983 the 1st respondent came to India on several occasions during 1985, 1987 and in 1993. For a long time the appellant had not taken any steps to get execution of the sale deed. Mapillai Kani and Chokkaiya Devar are close friends of appellant. By misrepresentation the appellant has obtained patta. It is not true to state that the appellant has leased out the property to Kadar Ammal Beevi to run saw mill. Her husband has encroached the 1st defendant's property admeasuring East West 10 feet and North South 12 feet and has put up a thatched roof. It was objected by the 1st respondent which made the appellant to issue pre-suit notice with the false allegations. The reply with true state of affairs has been sent. The 1st respondent has executed the sale deed with respect to the suit property in favour of 2nd respondent on 07.01.1994 and the appellant is not in possession of the suit property. The suit is barred by limitation and liable to be dismissed with costs. 4. After considering the pleadings, exhibits and oral evidence on record on the basis of the issues framed, the Trial Court namely District Munsif Court, Senkottai, turned down the prayer and dismissed the suit. The appellant / plaintiff preferred the appeal in A.S.No.48 of 1999 on the file of Additional Sub Court, Tenkasi, which also concurred with the verdict of the Trial Court and dismissed the appeal. Hence the appellant is before this Court with this second appeal. 5. At the time of admitting the second appeal this Court has framed the following substantial questions of law:- a) Whether the Courts below are right in dismissing the suit notwithstanding part performance of the contract of sale between the parties? Hence the appellant is before this Court with this second appeal. 5. At the time of admitting the second appeal this Court has framed the following substantial questions of law:- a) Whether the Courts below are right in dismissing the suit notwithstanding part performance of the contract of sale between the parties? b) Whether the Courts below are right in rejecting Ex.A2 and A3 executed by the first defendant referring the sale transaction holding it relates to some other property, while admittedly the defendant did not prove that the reference of the property in Exs.A2 and A3 are related to some other property especially when there is no other transactions between the parties pleaded by the first defendant? c) Whether the Courts below are right in dismissing the suit notwithstanding the plaintiff/appellant had performed the contract on his part by paying entire sale consideration even in January, 1982?. 6. The suit property is a vacant site sprawling to an extent of 2.3/8 cent in Keezhpadagai village in Tenkasi Taluk which belongs to the 1st respondent. It is alleged that in January 1982, the 1st respondent entered into an agreement of sale with appellant, which was oral, agreeing to sell the suit property to him for a sum of Rs.1800/- and to execute the sale deed in his favour whenever he demanded. It is further stated that he paid Rs.1800/-to the 1st respondent who was in dire need of the money for the purpose of taking journey to Saudi Arabia on account of his employment. It is also argued that in pursuance of the oral agreement of sale the 1st respondent delivered his title deed and possession of the suit property to the appellant. The above said contentions are denied by the 1st respondent by stating that he is in affluent position and there is no need for him to get money from the appellant. He also denies the statement that he handed over his title deed namely the registered gift deed [Ex.A1] dated 07.12.1977, to the appellant. In order to find out whether the alleged oral agreement of sale is true, the following circumstances have to be analyzed in the light of exhibits, for which critical examination and reappreciation of oral evidence on record are inevitable. (1) Production of Ex.A.1 from the custody of appellant. (2) Possession of suit property with appellant. (3) Import of Ex.A2 & A.3 7. (1) Production of Ex.A.1 from the custody of appellant. (2) Possession of suit property with appellant. (3) Import of Ex.A2 & A.3 7. As far as the custody of Ex.A1 with the appellant is concerned, his contention was repelled by the respondent by stating that he reposed confidence on him and since he was his close relative, he asked him to supervise his properties including the suit property as he had to leave for foreign country and that taking advantage of his absence the appellant had fraudulently removed records including Ex.A.1 from his house. In his oral evidence the 1st respondent has stated that he came to know that Ex.A.1 is with the appellant, in 1994 only and even thereafter he had not taken any steps to get it back from him. In this regard the oral account of PW.3 has to be looked into. He has stated that he was present at the time of sale agreement between both the appellant and the 1st respondent; he witnessed the receipt of Rs.1800/-by the 1st respondent from appellant and the gift deed was also given by the 1st respondent to the appellant. Significantly, it is to be noticed that he is closely related to both the parties. From his evidence it transpires that the appellant herein is the sister's son and the 1st respondent is the elder brother's son of PW3. In cross examination, he would say that he was working as Accountant under the appellant for sometime and after 1986 he discontinued the said service. The cross examination is to the effect that he has not deposed against the 1st respondent. By scanning the oral evidence P.W.3, it comes to light that there is nothing to disbelieve his testimony. By means of his examination, the oral agreement of sale has been proved. The delivery of possession of property under Ex.A.1 to the appellant has also been brought to light. The above said circumstances would probabilise the pleading put forth by the appellant. 8. In so far as the possession of suit property by the appellant subsequent to the agreement of sale is concerned, the evidence PW2 is available. He is the husband of Kadar Ammal Beevi to whom the appellant has leased out the suit property. PW2 speaks about the lease taken by his wife and running of saw mill by her. 8. In so far as the possession of suit property by the appellant subsequent to the agreement of sale is concerned, the evidence PW2 is available. He is the husband of Kadar Ammal Beevi to whom the appellant has leased out the suit property. PW2 speaks about the lease taken by his wife and running of saw mill by her. In his oral evidence he deposed that she has encroached upon a portion in the suit property against which the appellant has not taken any steps. It is the admitted fact that the above said Kadar Ammal Beevi has been in possession of the portion in the suit property. 9. As far as Ex.A2 and A3, the letters, which were written by the 1st respondent when he was in foreign country to the appellant are concerned, it is admitted that in those letters he has referred the suit property. He explained that the appellant wrote letters to him requesting him to sell the suit property to him, for which he replied that if he intends to sell the property, he would sell it to appellant alone and in the cross examination he twisted his words by stating that his brother received money from the appellant and he agreed to sell his property to the appellant and with regard to above said transactions he wrote both the letters to him. These aspects does not find place in the written statement and in Ex.A.2 and A.3. In both these letters the 1st respondent has categorically stated that he would sell the property to the appellant. Hence, it is to be observed that both Ex.A.2 & A3 are related only to the suit property. 10. While the above said circumstances are carefully considered, it would lead to a corollary that the oral agreement of sale as contended by the appellant is true one and the factual aspects in this regard as available in the pleadings, oral evidence and exhibits are exemplary to inter that there was an oral agreement of sale with respect to the suit property between the appellant and the 1st respondent for a sum of Rs.1800/-. 11. The other aspect arose for consideration in this case is, whether the 2nd respondent is bona fide purchaser for value without notice. 11. The other aspect arose for consideration in this case is, whether the 2nd respondent is bona fide purchaser for value without notice. The telling circumstance in this case is the execution of Ex.B.8 sale deed by the 1st respondent in the favour of the 2nd respondent on 07.01.1994 after the receipt of pre suit notice Ex.A.7 dated 27.12.1993 sent by the appellant and received by both the respondents. In the said notice the appellant demanded the 1st respondent to execute the sale deed in his favour and required both the respondents not to enter into any kind of alienation as regards suit property. A single reply notice was issued by both the respondents to the appellant on 08.01.1994 repudiating the claim of the appellant. Worthwhile it is to note that after receipt of the notice Ex.A.7 from the appellant both of them entered into sale transaction under Ex.B.8 on 07.01.1994 and on the next date on 08.01.1994 they issued the reply. In this regard the 2nd respondent in his evidence would say that he purchased the suit property without making any enquiry. He also says in his chief examination that the fact regarding oral sale agreement came to his knowledge only on 07.01.1994 and before the execution of sale under Ex.B.8 he had no occasion to know about the said oral agreement. It is also evident from his evidence that his house is situated 50 feet away from the suit property and in a portion of the suit property Kadar Ammal Beevi is running a saw mill in a space admeasuring 10 ft X 10 ft. The above said aspects would amplify the fact that the 2nd respondent had notice about the sale agreement between the appellant and the 1st respondent with respect to suit property even prior to his sale and only with the knowledge of the same he purchased the property from the 2nd respondent. In this regard it is difficult to hold that he is a bona fide purchaser for value without notice. Adverting to the law on this point, the Apex Court has observed in Ram Niwas (dead through L.Rs.) Vs. Smt. Bano and others reported in (2001)1 M.L.J.33 (S.C) as follows: "The word 'notice' should have been used in issue No.10 instead of 'knowledge' because Sec.19(b) uses the word notice. Adverting to the law on this point, the Apex Court has observed in Ram Niwas (dead through L.Rs.) Vs. Smt. Bano and others reported in (2001)1 M.L.J.33 (S.C) as follows: "The word 'notice' should have been used in issue No.10 instead of 'knowledge' because Sec.19(b) uses the word notice. From the definition of the expression "a person is said to have notice" in Sec.3 of the Transfer of Property Act, it is plain that the word 'notice' is of wider import than the word 'knowledge' of a fact but he may have notice of it having regard to the aforementioned definition and explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II to Sec.3 of the Transfer of Property Act. On this point, in the light of the above discussion, we hold that the purchasers will be deemed to have notice of Ext.1, should it be found to be true and valid." Following the principles laid down by the Supreme Court on the strength of Explanation II to Section 3 of the Transfer of Property Act, it ought to be held that the 2nd respondent had notice about the transaction between the appellant and hence he cannot be termed to be a bona fide purchaser for value without notice. 12. Much was said about the right of the appellant to approach court in time. It is argued by the respondents that the suit is barred by time. The sale agreement which is in dispute is oral. There is no evidence as to when the sale deed had to be executed. No date was fixed for execution and the sale agreement was entered in January 1982. The suit notice was issued on 27.12.1993, after about 11 years, it is contended that the demand for execution of sale deed after long time cannot be entertained since the claim has been barred by time. 13. This court, on many an occasion, has held that if no date is fixed for performance of the contract, the period of three years would begin to run from the date when the appellant has noticed that the performance is refused. 13. This court, on many an occasion, has held that if no date is fixed for performance of the contract, the period of three years would begin to run from the date when the appellant has noticed that the performance is refused. It has been repeatedly observed by this court and it is the consistent view of this Court that if a date is fixed for performance of contract, the period of three years for performance would begin from the expiry of the said date and in the absence of any specific date fixed, the period shall begin from date of refusal by the owner of the property. 14. Those principles have already been laid down by the Division Bench of this Court in P. Sivan Muthian and others Vs. John Sathiavasagam reported in (1980)1 M.L.J.490, in Rajamani Ammal Vs. Neelambal Ammal alias Neela reported in (1995)2 L.W.710, in Susila Vs. Rajagopala Pathar(died) and others reported in (1999)1 M.L.J.726. And also in Shanmugam (died) by Lrs & Others Vs. Parvathi & Others reported in which it is held thus: "The question in the present case is as to whether the suit for specific performance filed by the present appellant on 10.03.1984 can be said to be within the period of limitation. Obviously, the cause of action for filing such suit arise when the defendant specifically refused to execute the sale deed. The trial court as well as the appellate court have referred to the evidence on record and have come to the conclusion that in August, 1980, the defendant had refused to execute the sale deed and, therefore, the suit should have been filed within three years from the date of such refusal." 15. In the case on hand, the suit notice has been issued after long time on 27.12.1993 and the claim of appellant was refused by the 1st respondent on 08.01.1994 by means of his reply notice. The plaint has been presented in the court on 18.01.1994 itself within three years from the date of reply containing refusal by the 1st respondent. Hence the suit is well within time which is not at all barred as per law. 16. The other area of consideration pertains to readiness and willingness on the part of applicant to have the statutory requirement fulfilled. Hence the suit is well within time which is not at all barred as per law. 16. The other area of consideration pertains to readiness and willingness on the part of applicant to have the statutory requirement fulfilled. In the pleading there is no specific plea to the effect that the appellant had been ready and willing to get the sale deed executed. However, the reading of the entire plaint allegations would go to show that he had been always ready and willing to perform his part of contract, for which the 1st respondent was not coming forward. While deciding this point, the Supreme Court has formulated principles to the effect that even though it has not been specifically pleaded that the plaintiff was ready and willing, the conduct of the parties have to be considered by the court and reach a conclusion whether the plaintiff was ready and willing to perform as part of contract. In this connection, the ratio laid down by the Three Judges Bench of Supreme Court has to be referred and followed. In 1999(6) SCC 337 in Syed Dastagir Vs. T.R.Gopalakrishna Setty it has been observed as under: "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performances of contract for sale." The above said decision has been followed in the subsequent case dealt with by the Supreme Court reported in 2005 (5) CTC 800 in Aniglase Yohannan Vs. Ramlatha and others. In a recent judgment of the Supreme Court reported in Ramakrishna pilla & another Vs. Muhammed Kunju & others, it has been held as follows: "Reference was placed on several decisions of this court in support of the stand e.g. K.S. Vidyanadam and others V. Vairavan ( 1997(3) SCC 1 ), K. Narendra vs. Riviera Apartment (P) Ltd. ( 1999(5) SCC 77 ), V.Pechimuthu V. Gowrammal ( 2001(7) SCC 617 ), Manjunath Anandappa V. Tammanasa and others ( 2003(10) SCC 390 ) and Pukhraj D. Jain & Ors.V.G. Gopala Krishna ( 2004 (7) SCC 251 ). There can be no quarrel with the position in law urged by learned counsel for the respondent about the parameters to be considered while dealing with a suit for specific performance. But the High Court's judgment is clearly vulnerable. Firstly, there was no dispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfill their obligations. The High Court was clearly in error in holding that no plea regarding readiness and willingness was raised. As noted above, the trial court in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and always willing to fulfill their part of the obligations. The High Court was clearly in error in holding that no plea regarding readiness and willingness was raised. As noted above, the trial court in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and always willing to fulfill their part of the obligations. The High Court also failed to notice that there was no plea either the written statement or in the cross objections filed in the appeal before the High Court that the plaintiffs were not ready and willing to fulfill their part of the obligation." Following the dictum laid down by the Supreme Court in this aspect it must be held that even though, categorical terms "ready and willing", are absent in the plaint, the entire pleadings shall be read as a whole and it is to be inferred whether the appellant had been ready and willing to perform his part of contract. Applying the above said principles to the facts of the present case, the allegations in the plaint would candidly show that the appellant had always been ready and willing to get sale deed executed by the 1st respondent. 17. Adverting to the sale consideration for the property, the appellant alleges that it was fixed at Rs.1800/-. Conversely, the 1st respondent would contend that it was only a paltry sum, that in 1982, the property was worth about Rs.20,000/-and the alleged sale consideration is myth and improbable. In Ex.A.1 the gift deed, in 1977, the value of the suit property was mentioned as Rs.2450/-only. Hence there was no much difference in the sale consideration fixed in the year 1982. However by passage of time the value of the immovable properties are shooting up, which could not be denied by anybody else. The sale agreement is said to have taken place in 1982 and the suit was instituted in the year 1994 and the second appeal is being disposed of in the year 2008. Since 26 years have passed, it is legally impracticable to direct the 1st respondent to execute the sale deed in favour of the appellant for a sale consideration for a meagre sum of Rs.1800/-. Since 26 years have passed, it is legally impracticable to direct the 1st respondent to execute the sale deed in favour of the appellant for a sale consideration for a meagre sum of Rs.1800/-. In this regard this court is following the decision of the Apex Court in which it is held that in like cases, the increasing value of the property has to be borne in mind and the Court shall fix the sale consideration in a proper manner and direct the parties to enter into sale transaction. In 2008-2-L.W.35 in Pratap Lakshman Muchandi & others Vs. Shamlal Uddavadas Wadhwa & others. "But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shoot up very high, therefore, while exercising our jurisdiction under section 20 of the Specific Relief Act, 1963 we would like to be executed for a sum of Rs.1,20,000/-. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of passage of time we direct that the respondents shall pay a sum of Rs.5 lacs in addition to Rs.1,10,000/- as out of Rs.1,20,000/-, Rs.10,000/-has already been paid as advance. In receipt of Rs.1,10,000/- and Rs.5 lacs [Rs.6,10,000/-] the appellants shall execute the agreement to sell for the property in question." In the above said case, the sale consideration was agreed at Rs.1,20,000/- about 25 years back and the Supreme Court took into consideration the shooting increase in value of immovable properties and fixed a additional amount of Rs.5 lakhs, besides Rs.1,20,000/- as sale consideration. 18. Following the guidelines set out in the decision aforesaid, in this case the sale consideration to be paid by the appellant has to be fixed in a equitable manner taking judicial notice of the astronomical rise in the value of immovable properties, which should not be prejudicial to both parties. It is made clear that no legal title is passed in the suit property on the strength of Ex.B.8 to the 2nd respondent and same is set aside. 19. It is made clear that no legal title is passed in the suit property on the strength of Ex.B.8 to the 2nd respondent and same is set aside. 19. In the written statement it is pleaded that in 1982 the value of the property was Rs.20,000/- and presently it is worth about Rs.40,000/-. The written statement was filed in the year 1994 itself. PW.1 the appellant was confronted during his cross examination with a suggestion that the value of the property in Vadagarai per cent is Rs.60,000/-. which was denied by him. PW.3 states that if it is suggested that the value of the suit property would be between Rs.60,000/- and Rs.70,000/-, he could not deny. The crucial document for ascertaining the market value of suit property Ex.B.8 and this court feels that it is not precluded from relying upon the same for the purpose of fixing the market value of the property. Ex.B.8 is dated 07.01.1994. The suit was laid in the year 1994. In Ex.B.8, sale consideration is mentioned as Rs.13,000/-. However reading the oral evidence of 2nd respondent would show that the actual value of the property was more than Rs.13,000/- he says that as per record,(Ex.B.8) he paid Rs.13,000/-, but in addition to that he paid Rs.20,000/- and that since higher stamp duty had to be paid, the sale consideration was restricted to Rs.13,000/-alone in the sale deed. Hence, at the time of Ex.B.8 in 1994 the actual value of the suit property was Rs.33,000/-. 20. Considering the above said circumstances, this court deems it appropriate to fix the market value of the property at Rs.50,000/-. The appellant had already paid Rs.1,800/-and remaining sum of Rs.48,200/-has to be paid by him and the 1st respondent shall execute the sale deed in favour of the appellant who will bear the expenditure for getting sale deed. 21. The appellant is directed to deposit a sum of Rs.48,200/-into the Trial Court within three months from the date of judgment and on such deposit, the 1st respondent shall execute the sale deed in respect of the property in his favour, failing which the Trial Court shall execute the sale deed as per procedure in favour of the appellant. The 1st respondent shall execute the sale deed within three months from the date of deposit by the appellant and the deposit of Rs.48,200/- is payable to the 1st respondent. 22. The 1st respondent shall execute the sale deed within three months from the date of deposit by the appellant and the deposit of Rs.48,200/- is payable to the 1st respondent. 22. With the above said directions the second appeal is allowed no costs.