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2010 DIGILAW 1271 (MAD)

Kaliaperumal & Another v. Arjunan & Others

2010-03-25

M.DURAISWAMY

body2010
Judgment :- 1. The above Second Appeal arises against the judgment and decree made in A.S.No.3 of 1991 on the file of Sub-Court, Cuddalore, reversing the Judgment and Decree made in O.S.No.1345 of 1985 on the file of District Munsif Court, Panruti. 2. The Defendant in the Suit is the First Appellant in the above Second Appeal. The Second Appellant is the subsequent purchaser of the suit property. Respondent 3 to 5 are the Legal Representatives of the Deceased, First Respondent, who was the Plaintiff in the Suit. 3. The Plaintiff filed the Suit in O.S.No.1345 of 1985 on the file of District Munsif Court, Panruti for specific performance. 4. The brief case of the Plaintiff is as follows: According to the Plaintiff, the suit property was purchased by one Mohammed Ibrahim in the name of his wife Jaibunnisa and his children, by a registered Sale Deed, dated 29.02.1976. Since the date of purchase, Jaibunnisa was in possession and enjoyment of the property. Jaibunnisa’s husband, Mohammed Ibrahim, died some years ago and after his death, the said Jaibunnisa continued to be in possession and enjoyment of the suit property. On 29.10.1979, the said Jaibunnisa sold the suit property to the Defendant by a registered Sale Deed and from the date of the purchase, the Defendant is in possession and enjoyment of the suit property. The said sale was for the necessity of the family and for the interest of the minor-children. On the same day, i.e., on 29.10.1979, the Defendant and Jaibunnisa entered into a registered agreement in respect of the suit property with a right to repurchase as per the terms of the agreement and the Defendant received a sum of Rs.100/-as advance from Jaibunnisa and agreed to execute the Sale Deed in her favour after receiving the balance amount of Rs.9,900/-after a period of 5 years and within a period of 7 years. On 17.12.1984, the Plaintiff got the assignment of the right to repurchase from Jaibunnisa by a registered document. As per the assignment, the Plaintiff is entitled to get the sale from the Defendant in respect of the suit property. The Plaintiff sent a registered notice dated 02.05.1985 to the Defendant calling upon the Dependant to execute the Sale Deed after receiving Rs.9,900/-. Therefore, the Plaintiff has filed the Suit. 5. As per the assignment, the Plaintiff is entitled to get the sale from the Defendant in respect of the suit property. The Plaintiff sent a registered notice dated 02.05.1985 to the Defendant calling upon the Dependant to execute the Sale Deed after receiving Rs.9,900/-. Therefore, the Plaintiff has filed the Suit. 5. The brief case of the Defendant is as follows: (i) According to the Defendant, Jaibunnisa along with her sons -Mohammed Ismail and Mohammed Abubakkar and as the guardian of other minor sons, sold the property on 29.10.1979 in favour of the Defendant for a sum of Rs.10,000/-. As such, it is not correct to say that Jaibunnisa alone sold the property. On 29.10.1979, as mentioned in the Plaint, he had executed an agreement to reconvey the property to Jaibunnisa and a sum of Rs.100/- was paid as advance. According to the Defendant the assignment of the right to repurchase dated 17.12.1984 is not true, valid and also not bona fide. The Plaintiff is not an assignee in good faith and the assignment is not a bona fide one. The Defendant sent a reply dated 11.12.1984 to the notice given by the assignor. After the reply, the Plaintiff got an assignment which is not at all valid. (ii) According to the Defendant, the assignor, Jaibunnisa, has no exclusive right to enforce the reconveyance which was executed by Jaibbunnisa along with two minor sons and as the guardian of the minor sons. As such, all the vendors are entitled to the suit property, and the right of reconveyance is a right exercisable by all the parties jointly. The other sharers are necessary parties to the Suit and the Suit is bad for nonjoinder of necessary parties. The Defendant also made some improvements in the suit property after his purchase and obtained electricity connection. (iii) According to the Defendant, the assignor demanded a sum of Rs.2,000/-for the release of the reconveyance and the Defendant paid the sum of Rs.2,000/-to the assignor, who received the same and handed over the original agreement to the Defendant in token thereon. Since the Defendant had accepted the original agreement, he did not insist upon a separate endorsement of release. The agreement to reconvey is not at all subsisting and it has been released by the receipt of the amount. Therefore, the Defendant prayed for dismissal of the Suit. 6. Since the Defendant had accepted the original agreement, he did not insist upon a separate endorsement of release. The agreement to reconvey is not at all subsisting and it has been released by the receipt of the amount. Therefore, the Defendant prayed for dismissal of the Suit. 6. Before the Trial Court, on the side the Plaintiff, the Plaintiff was examined as PW-1 and 6 documents, Ex.A-1 to Ex.A-6 were marked and on the side of the Defendant, the Defendant was examined as DW-1 and 11 documents, Ex.B-1 to Ex.B-11 were marked. 7. The Trial Court after taking into consideration, the oral and documentary evidences of both the parties, dismissed the Suit. 8. Aggrieved over the judgment and decree of the Trial Court, the Plaintiff preferred Appeal in A.s.No.3 of 1991 on the file of Sub-Court, Cuddalore and the Lower Appellate Court set aside the judgment and decree of the Trial Court and allowed the Appeal. 9. Aggrieved over the judgment and decree of the Lower Appellate Court, the Defendant has filed the above Second Appeal. 10. Heard Mr. R. Sunilkumar, learned counsel for the Appellant and Mr. R. Saseetharan, learned counsel for the Respondents 3 to 5. 11. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration: “Whether the judgment of the Lower Appellate Court reversing that of the Trial Court is vitiated by its failure to consider the relevant evidence and apply the correct principles of law?” 12. On a careful consideration of the materials available on record and the submissions made by the respective counsels, it could be seen that under Ex.A-1-Sale Deed dated 29.10.1979, the Appellant/Defendant purchased the suit property from one Jaibunnisa and her children. On the same day, i.e., on 29.10.1979 under Ex.A-2 agreement to reconvey the property, the Appellant agreed to reconvey the property to the said Jaibunnisa for a sale consideration of Rs.10,000/- and received a sum of Rs.100/- as advance. As per, under Ex.A-2 Reconveyance Agreement, the Appellant has to execute the Sale Deed after 5 years and within 7 years from the date of execution of the agreement in favour of Jaibunnisa. 13. According to the Appellant, he paid a sum of Rs.2,000/- to the said Jaibunnisa and got back original deed of reconveyance dated 29.10.1979 (marked as Ex.A-2). As per, under Ex.A-2 Reconveyance Agreement, the Appellant has to execute the Sale Deed after 5 years and within 7 years from the date of execution of the agreement in favour of Jaibunnisa. 13. According to the Appellant, he paid a sum of Rs.2,000/- to the said Jaibunnisa and got back original deed of reconveyance dated 29.10.1979 (marked as Ex.A-2). Under Ex.B-7-Notice dated 04.12.1984 sent by Jaibunnisa to the Appellant, the said Jaibunnisa called upon the Appellant to execute the Sale Deed in her favour. The Appellant sent Ex.B-8-reply dated 11.12.1984 informing that he had already paid a sum of Rs.2,000/- and got the agreement of reconveyance discharged. The said notice was duly received by the said Jaibunnisa under Ex.B-9-Acknowledgment card. While so, it has been alleged by the Plaintiff that the said Jaibunnisa executed a deed of assignment in his favour and the assignee’s right to repurchase the suit property from the Appellant/Defendant was marked as Ex.A-3. Based on the said deed of assignment, the Plaintiff issued Ex.A-4-Notice dated 02.05.1985 to the Appellant/Defendant calling upon him to execute the Sale Deed in his favour. 14. On a perusal of the Written Statement filed by the Appellant/Defendant it is clear that he has specifically denied the genuineness and Ex.A-3-Deed of assignment made in favour of the Plaintiff. In the Suit excepting the Plaintiff no one was examined to prove the case of the Plaintiff. Since the Appellant had specifically denied the genuineness of the Ex.A-3-Assignment Deed, the Plaintiff ought to have examined either Jaibunnisa or the attestors to the said document to prove the due execution of the document. In the case on hand, it was not done. Therefore, the Plaintiff failed to prove Ex.A-3-Agreement, since Ex.A-3 was not proved by the Plaintiff, Ex.A-3 cannot be relied upon and therefore the document is liable to be rejected. 15. That apart, it is not in dispute that the suit property belonged to Jaibunnisa and her sons. Ex.A-1-Sale Deed dated 29.10.1979 was executed by all the sharers of the suit property. But Ex.A-2-agreement to reconvey the suit property was executed only between Jaibunnisa and Plaintiff. The sons of the Jaibunnisa were excluded in the execution of the document. Similarly, under Ex.A-3-Assignment Deed dated 17.12.1984 also, the document was entered only between Jaibunnisa and the Plaintiff. Ex.A-1-Sale Deed dated 29.10.1979 was executed by all the sharers of the suit property. But Ex.A-2-agreement to reconvey the suit property was executed only between Jaibunnisa and Plaintiff. The sons of the Jaibunnisa were excluded in the execution of the document. Similarly, under Ex.A-3-Assignment Deed dated 17.12.1984 also, the document was entered only between Jaibunnisa and the Plaintiff. The Plaintiff has not given any reasons for not making the other sharers as parties in the document. Since the Plaintiff has filed the Suit based on Ex.A-3-Assignemnt Deed dated 17.12.1984 executed by Jaibunnisa in his favour, Jaibunnisa is also a necessary party to the Suit. However, she was not made as a party in the Suit. In the absence the other sharers, i.e., sons of Jaibunnisa, she cannot sell away the property to the Plaintiff. As already stated, the Plaintiff has failed to prove the due execution of Ex.A-3- Assignment Deed dated 17.12.1984 by Jaibunnisa in her favour by examining any witness. 16. That apart, the readiness and willingness of the Plaintiff though he has stated he is prepared to deposit the sale consideration amount before the Trial Court on the date of filing of the Suit, he has not pleaded that he was always ready and willingness to perform his part of the contract right from the date of the execution of the agreement till the date of filling of the Suit. As per Section 16(c) of the Specific Relief Act, the Plaintiff must plead and prove the readiness and willingness. In the case on hand, the Plaintiff has not pleaded that he was always ready and willing to perform his part of the contract right from the date of the execution of the agreement till the date of filing of the Suit. The Lower Appellate Court reversed the judgment and decree of the Trial Court finding that the Appellant has not proved the payment of Rs.2,000/- by any documentary evidence. 17. The learned counsel for the Respondents contended that the Second Appellant who is the subsequent purchaser and was impleaded in the above Second Appeal as the Second Appellant has no locus standi to raise the plea of readiness and willingness. 17. The learned counsel for the Respondents contended that the Second Appellant who is the subsequent purchaser and was impleaded in the above Second Appeal as the Second Appellant has no locus standi to raise the plea of readiness and willingness. In support of the said contentions, he relied upon a judgment reported in the case of Jugraj Singh and another v. Labh Singh and others, 1995 (2) SCC 31 , wherein the Apex Court held that the plea of ready and willingness of Plaintiff is specifically available to the vendor or his legal representatives. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the Plaintiff. 18. In the case of Ram Awadh v. Achhaibar Dubey, 2000 (2) SCC 428 in the Apex Court held that the plea of readiness and willingness is available to all the Defendants to contend and establish that the mandatory requiremen5ts of 16(c) of the Specific Relief Act has not been complied with. The Apex Court also held that the plea of readiness and willingness can be raised also by the subsequent purchaser of the property or his legal representatives. The Apex Court found that the ratio laid down in the case of Jugraj Singh and another v. Labh Singh and others, 1995 (2) SCC 31 , is erroneous. Therefore, applying the principles laid down in the judgment reported in 2000 (2) SCC 428 it is clear that the Second Appellant can raise the plea of readiness and willingness against the Respondents. 19. In the case on hand, the Second Appellant who is the subsequent purchaser of the suit party was impleaded only in the Second Appeal. As stated earlier, the Plaintiff has not stated anything about the readiness and willingness in the Plaint as provided under Section 16(c) of the Specific Relief Act. Therefore, the Plaintiff has failed to establish and prove that he was always ready and willing to perform his part of the contract. In this ground also, the Suit is liable to be dismissed. 20. As already found, the Plaintiff has filed the Suit based on Ex.A-3 agreement dated 17.12.1984 and the said document though disputed by the First Appellant was not proved by the Plaintiff. In this ground also, the Suit is liable to be dismissed. 20. As already found, the Plaintiff has filed the Suit based on Ex.A-3 agreement dated 17.12.1984 and the said document though disputed by the First Appellant was not proved by the Plaintiff. The burden of proof lies heavily on the Plaintiff, but the Plaintiff failed to discharge the burden of proof. Therefore, Ex.A-3 is liable to be rejected. Consequently, the Suit is liable to be dismissed. Therefore, the judgment and decree of the Lower Appellate Court cannot be sustained and is liable to be set aside. 21. In these circumstances, the substantial question of law is decided in favour of the Appellant. The judgment and decree of the Lower Appellate Court are set aside. The judgment and decree of the Trial Court are restored. The above Second Appeal is allowed. However, there shall be no order as to costs.