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2014 DIGILAW 3266 (MAD)

Sekar v. P. Manoharan

2014-09-12

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. Defendants 2 to 9 in O.S. No. 552 of 1989 and the plaintiffs 2 to 8 in O.S. No. 552 of 1995 have filed S.A. Nos. 1086 of 2006 an 1087 of 2006 respectively against the common judgment and decree dated 16.12.2004 passed by the Principal Subordinate Judge, Tindivanam, in A.S. No. 59 of 2003 and A.S. No. 58 of 2003 respectively wherein and by which the common judgment and decree dated 30.6.2003 passed by the Principal District Munsif, Gingee, in O.S. Nos. 552 of 1989 and 552 of 1995 respectively, were confirmed. 2. Since the issue involved in these two appeals is inter-connected and as they arise out of common judgment and decree by the Courts below, they are disposed of by this common judgment. 3. From the materials available on record, it is seen that the plaintiffs in O.S. No. 552 of 1989 are the defendants in O.S. No. 552 of 1995. O.S. No. 552 of 1989 is filed for specific performance of the agreement dated 01.3.1980. O.S. No. 552 of 1995 is filed by the plaintiffs for declaration, injunction and recovery of possession. The suit for specific performance in O.S. No. 552 of 1989 was decreed and the suit in O.S. No. 552 of 1995 for declaration and injunction was dismissed. The defendants in O.S. No. 552 of 1989 who are the plaintiffs in O.S. No. 552 of 1995 are the appellants before this Court. 4. For the sake of convenience, the parties will be referred to by their litigative status in O.S. No. 552 of 1989. 5. The suit properties originally belonged to one Sadagopan Naidu who had three sons, viz., Ramanujam, Thyagarajan and Purushothaman. After the death of Sadagopan, the properties devolved on the three sons each entitled to 1/3rd share. The 1/3rd fell to the share of Thyagarajan was purchased by Ramanujam, who was the first defendant. His wife is one Saroja, who is arrayed as the fifth defendant and the three sons, viz., Sekar, Rangabashyam and Gopi, are arrayed as defendants 2 to 4 respectively and another son Murthy died prior to the suit. The suit property is part of B Schedule property in a partition between the brothers, which is exhibited as B.2 dated 15.11.1969. His wife is one Saroja, who is arrayed as the fifth defendant and the three sons, viz., Sekar, Rangabashyam and Gopi, are arrayed as defendants 2 to 4 respectively and another son Murthy died prior to the suit. The suit property is part of B Schedule property in a partition between the brothers, which is exhibited as B.2 dated 15.11.1969. According to the plaintiffs, the first defendant Ramanujam for himself and on behalf of his minor children 2 to 4 agreed to sell to one Balakrishnan, who is the husband of the tenth plaintiff and father plaintiffs 1 to 9. As per the agreement, the sale amount was fixed at Rs.8000/- and sum of Rs.2000/- was paid on the date of agreement, viz., 01.3.1980. Even prior to the agreement being reduced in writing, a sum of Rs.6000/-was paid by Balakrishnan Gounder to the first defendant. As the entire sale consideration was paid even on the date of agreement, the sale was to be executed as and when demanded by the plaintiffs' father. It is stated that though the plaintiffs were ready and willing to perform their part of agreement, the defendants were evading the same. The possession of the properties were also given to the plaintiffs' father on the date of the agreement. The plaintiffs' father Balakrishna Gounder died on 27.02.1996. His heirs continue to be in possession of the properties and dealing with the same but letting it out to third parties. In one such agreement dated 09.12.1998, the first defendant had also attested. On 28.02.1989, the first plaintiff requested the defendants to execute the sale deed and the defendant also agreed to do. As agreed, when they went to purchase the stamp papers before the Sub-Registrar's office, the value was said to be Rs.21,000/-for the suit properties and the required stamp papers were asked to be purchased. As the prices have gone up, the defendants refused to part with the amounts for a sum which was less than the guideline value. Therefore, the defendants refused to execute the sale deed in favour of the plaintiffs. Though the plaintiffs were ready and willing to perform their part of the contract, the defendants did not come forward to execute the sale deed. Hence, the plaintiffs filed the suit for specific performance on 05.4.1989 as the denial was only on 28.02.1989. 6. The defendants contested the suit on various grounds. Though the plaintiffs were ready and willing to perform their part of the contract, the defendants did not come forward to execute the sale deed. Hence, the plaintiffs filed the suit for specific performance on 05.4.1989 as the denial was only on 28.02.1989. 6. The defendants contested the suit on various grounds. It is stated by the defendants that though the first defendant had signed the agreement dated 01.3.1980, it is not binding on the other defendants and that he had no right to bind the rights of the minor defendants. The handing over possession of the suit properties to the plaintiffs was denied by the defendants. Hence, prayed for dismissal of the suit. 7. The third defendant, who was the minor on the date of agreement, had filed an additional affidavit wherein the agreement itself was denied. According to him, The sale itself was not intended for the benefits of the minors or for the family benefit. Hence, the first defendant had no right to sell the share of the minors. He had also contended that the suit is barred by limitation as the same had been filed after 8 = years. 8. O.S. No. 552 of 1995 was filed by the appellants herein for declaration, injunction which was subsequently amended for recovery of possession. According to the plaintiffs, the suit property is a portion of the larger extent in S. No. 91/1 and they have been enjoying the suit property in their own right. They also dealt with the property by mortgaging it to one Poongavanammal on 20.6.1984 it is further stated that the plaintiffs only have been paying property tax, etc. While so, the third defendant had trespassed into the property but he has got no right or title over the same. It is the previous enmity between the parties that prompted the defendants to trespass into the plaintiffs' property. Hence, the suit. 9. The defendants filed written statement accepting the ownership of the property and also about the sale agreement dated 01.3.1980. The defendants contended that the plaintiffs themselves have put them in possession of the property pursuant to the sale agreement in part performance of the same and they have deliberately suppressed the same in the plaint. According to them, the suit is a counter blast for the suit filed by them in O.S. No. 552 of 1989 for specific performance. 10. According to them, the suit is a counter blast for the suit filed by them in O.S. No. 552 of 1989 for specific performance. 10. By consent of the parties, both the suits have been tried together and the documents were marked in common. 11. Before the trial Court, the first plaintiff besides examining himself as P.W.1, examined four more witnesses as P.W.2 to P.W.5 and marked Exs. A.1 to A.9. On the side of the defendants, the fourth defendant examined himself as D.W.1 besides examining two witnesses as D.W.2 and D.W.3 and marked Exs. B.1 and B.18. 12. The trial Court / learned Principal District Munsif, Gingee, on consideration of the evidence adduced and the materials available thereon, decreed the suit O.S. No. 552 of 1989 filed for specific performance and dismissed O.S. No. 552 of 1995 by common judgment and decree dated 30.6.2003. On appeal, the Lower Appellate Court, after appreciating the facts, confirmed the judgment and decree of the trial Court and dismissed the appeals. Feeling aggrieved, Defendants 2 to 9 in O.S. No. 552 of 1989 and the plaintiffs 2 to 8 in O.S. No. 552 of 1995 have filed the present appeals. 13. At the time of issuance of notice on 16.10.l2006, this Court granted interim stay. 14. Heard the learned counsel appearing for the parties and perused the records. 15. Now the issue to be decided is whether the Courts below were correct in deciding that the suit for specific performance was not barred by limitation and whether the appellants are entitled to a decree for recovery of possession. 16. From the materials available on record, it is seen that the respondents have filed the suit for specific performance based on the agreement dated 01.3.1980 which is marked as Ex. A.1. The suit property is East West 21' and North South 7=' with a house in Sankarapuram Village, Gingee. In proof of the said agreement, one of the witnesses to Ex. A.1 was examined as P.W.2. He has stated that on the date of agreement, a sum of Rs.2000/- was given to the defendants and Rs.6000/- was given to the defendants even prior to the agreement. In proof of the said agreement, one of the witnesses to Ex. A.1 was examined as P.W.2. He has stated that on the date of agreement, a sum of Rs.2000/- was given to the defendants and Rs.6000/- was given to the defendants even prior to the agreement. The first defendant has categorically admitted the execution of the sale agreement in favour of the plaintiffs and the same is evident from the statement made by the first defendant in his written statement in O.S. No.552 of 1989 and the relevant passages are usefully extracted below:- “TAMIL” However, it is seen that the third defendant had denied that the first defendant did not have the right to sell the properties belonging to the minors. On a reading of Ex. A.1, it is clearly understood that the first defendant has entered into the agreement for himself and on behalf of his minor children also. Therefore, the third defendant cannot deny that the first defendant has got no right to bind the share of the minors as per the agreement. 17. Admittedly, the first defendant had executed the agreement only in the capacity of kartha and for family necessity, viz., for the performance of the marriage of the seventh defendant. The first defendant had further denied that he had not received the entire sale consideration as stated in the plaint. However, in Ex. A.1, it has been categorically mentioned about the payment of Rs.2000/- at the time of execution and about the receipt of Rs.6000/- prior to the same which is as follows:- “TAMIL” 18. Though it is contended by the third defendant that his father first defendant did not have right to bind the interest of the minor children, from a perusal of Ex. A.1, it is seen that it was executed not only by the first defendant but also by one of the sons, who was the second defendant and was a major on the date of execution of the agreement. As stated earlier and as evidenced by the recitals in Ex. A.1, the payment of the entire sale consideration even on the date of agreement was established by the plaintiffs. As stated earlier and as evidenced by the recitals in Ex. A.1, the payment of the entire sale consideration even on the date of agreement was established by the plaintiffs. The reason assigned by the defendants for not executing the sale deed was that on the date agreed for executing the sale, i.e., after eight years, there was an escalation of price and the sale price paid to the defendants was less than the market value. Hence, the defendants refused to execute the sale for the amount agreed in the year 1980. It was specifically deposed by P.W.1 that the property was agreed to be sold to him because of the family expenses and also the marriage expenses of the seventh defendant. These facts were not denied by the defendants. The suit property is only 21 X 9.1 feet which is a very small portion of a larger extent of the property owned by the defendants' family. Therefore, even assuming for a moment that the sale agreement executed by the first defendant is not binding on the minor children or other sharers, in the event of partition, the share that would be allotted to the defendants 1 and 2 will be more than what has been purchased by the plaintiffs. Therefore, the objection raised by the defendants that the execution of the sale agreement by the father binding their share is not valid, is unsustainable. Hence, I hold that the sale agreement under Ex. A.1 dated 01.3.1980 is proved and the same is binding on the defendants 3 and 4 also. As such, the findings of the Courts below in this regard, require no interference. 19. Insofar as the possession of the suit properties are concerned, as stated earlier, even under Ex. A.1, it has been admitted by the parties that possession was left with the plaintiffs in part performance of the agreement under Section 53(A) of the Transfer of Property Act. There cannot be any doubt that the recital in the agreement in this regard is false because the entire sale consideration as agreed by the parties, was received on the date of agreement itself. Therefore, only the execution of the sale deed was pending and possession was also given to the plaintiffs. To evidence the possession by the plaintiffs, Ex. There cannot be any doubt that the recital in the agreement in this regard is false because the entire sale consideration as agreed by the parties, was received on the date of agreement itself. Therefore, only the execution of the sale deed was pending and possession was also given to the plaintiffs. To evidence the possession by the plaintiffs, Ex. A.9 Rent deed executed between the plaintiffs and one Pachaiappan, has been filed in which they have specifically recited that they had a right in the suit property under Ex. A.1 agreement. 20. Besides, the plaintiffs also relied on Exs. B.4 to B.18 Tax receipts in connection with the suit property. It was contended by the learned counsel for the defendants that these documents stand in the name of the first defendant and, therefore, cannot be taken in favour of the plaintiffs. In this regard, it is to be seen that the plaintiffs are in possession of the property and only the sale deed was pending. When the sale is not in the name of the plaintiffs, the mutation in the Revenue records cannot be possibly done. The defendants, who had already received the sale consideration and parted with the possession of the property with the plaintiffs, have no interest in paying the property tax. However, when the mutation has not been effected though the money is paid by the plaintiffs, the receipts are issued only in the name of the defendants. Therefore, the same cannot be taken advantage of by the defendants. 21. Insofar as the averments in the plaint by the appellants in O.S. No. 552 of 1995, originally, the relief asked for in the plaint is only for injunction restraining the defendants from interfering with their peaceful possession. However, subsequently, I.A. No. 857 of 1999 was filed for amending the plaint and accordingly, introduced the relief of recovery of possession also. From a reading of the plaint, there is no averment regarding dispossession by the respondents herein. If really the respondents had trespassed into the property pending the suit for permanent injunction, the plaintiffs ought to have given the details of the date of trespass and the date of occupation. The reading of the plaint is silent about these averments. Even there is no mention about the alleged date of trespass by the respondents herein in the cause of action paragraph. The reading of the plaint is silent about these averments. Even there is no mention about the alleged date of trespass by the respondents herein in the cause of action paragraph. The plaint has been amended only with regard to the relief of recovery of possession in the prayer portion. When there is no pleadings regarding the trespass and forced entry by the respondents in the plaint, mere amendment in the relief portion will not the entitle the plaintiffs for a decree. If really the respondents herein had trespassed and dispossessed the appellants, then the date of trespass and the other details with complaint to the police, would have found a place in the plaint. 22. The Hon'ble Supreme Court as well as this Court have time and again held that when the date of cause of action is not mentioned, any amount of evidence without the pleadings cannot be looked into. As stated earlier, the recitals in Ex. A.1 clearly indicates that the defendants 1 and 2 had handed over possession of the properties even on the date of agreement and the plaintiffs had been in continuous possession of the same till the date of suit. Therefore, the question of possession also finds in favour of the respondents. 23. Coming to the question of limitation, learned counsel for the appellants seeks in aid of the decision in Kondi and others vs. Sellamuthu and others [ 2013 (2) CTC 510 ] wherein in paragraphs 9.4 and 9.5, this Court has observed as follows:- “9.4. When the agreement do not prescribe any time limit, then how to construe the time limit for the purpose of limitation. As per Article 54 of Limitation Act, the period of limitation would be either three years from the date of agreement or where there is no time limit prescribed, three years from the date of refusal of performance. When the performance was refused by the defendants? 9.5. In this case, from which date / from which time performance was refused is the crucial issue. Given the widest latitude, the period of limitation would be atleast, the date on which there had been clash involving physical violence between the plaintiff and the defendants, leading to filing of criminal complaints. As per Ex.A-5 this incident has taken place on 12.10.1984. The suit ought to have been filed on or before 12.10.1987. Given the widest latitude, the period of limitation would be atleast, the date on which there had been clash involving physical violence between the plaintiff and the defendants, leading to filing of criminal complaints. As per Ex.A-5 this incident has taken place on 12.10.1984. The suit ought to have been filed on or before 12.10.1987. But the suit has been filed only during 1988. Therefore, the suit is clearly barred by limitation.” 24. In the above referred case, it is seen that from the date of refusal, the suit had been filed beyond the period of limitation. Hence, the relief of specific performance was declined. On the contrary, in the instant case, wherein also there was no time limit prescribed, the entire sale consideration was paid even on the date of agreement. 25. It would not be out of place for this Court to make a pertinent mention that the Hon'ble Apex Court in Mrs. Saradamani Kandappan vs. Mrs.S.Rajalakshmi & Ors. [ 2011 (12) SCC 18 ] has considered whether time is the essence of the contract and whether the said time prescribed is for the payment of the purchase price or for the execution of the sale deed. The Hon'ble Apex Court in paragraphs 23 and 28 of the judgment has observed as follows:- Para 23: “The above section deals with the effect of failure to perform at a fixed time, in contracts in which time is essential. The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.” Para 28: “The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract.” In view of the above decision, it is clear that time is the essence of contract insofar as the sale price is concerned if not for the execution of the sale deed. 26. No doubt, the suit for specific performance is maintainable within three years from the date of refusal. In this case, the defendants had received the entire amount and only the plaintiffs would run the risk if the sale is not executed in their favour and the plaintiffs seem to have issued a legal notice on 28.02.1989, which was refused by the defendants. The returned covers are marked as Exs. A.4 to A.7. In this case, the defendants had received the entire amount and only the plaintiffs would run the risk if the sale is not executed in their favour and the plaintiffs seem to have issued a legal notice on 28.02.1989, which was refused by the defendants. The returned covers are marked as Exs. A.4 to A.7. As the suit has been laid on 05.4.1989, which is very much within the period of limitation, viz., three years from the date of refusal, the suit is held to be valid as it is within the period of limitation. Accordingly, the question of limitation is decided in favour of the respondents and the findings of the Courts below are confirmed. 27. Learned counsel for the respondents placed reliance on the decision in Silvey and others vs. Arun Varghese and another [2008 SAR (Civil) 308] wherein the Hon'ble Supreme Court, while dealing with the false plea taken by a party, held in paragraph 13 of the judgment, as follows:- “As regards the false plea of the defendants, the effect needs to be noted. It was pleaded that defendant No. 3 had gone to the house of plaintiff No. 2 in alleppey prior to the receiving any letter from the plaintiffs and had spoken that they had told him that they were not keen in enforcing the application under Exh. Al. But when examined as DW1, the said defendant No. 3 admitted that he had never met the plaintiff as pleaded in the written statement and that he or any other defendant had never gone to Alleppey to meet plaintiff No. 2 at his residence to speak about the performance of the contract. The plea stated in the written statement was abandoned in evidence. In Lourdu Mari david and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. , 1996 (5) SCC 589 , it was noted that the conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. The High Court has, after analyzing the factual position, come to the conclusion that the defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement.” 28. The High Court has, after analyzing the factual position, come to the conclusion that the defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement.” 28. As held in the above decision, the conduct of the defendants also has to be considered by the Courts before granting or refusing the relief of specific performance. In the present case, admittedly, the entire sale consideration was received by the defendants and the plaintiffs were also put in possession of the property in part performance of the agreement. Further, it was also agreed by the defendants to execute the sale deed in February 1989 and it was refused by them because of the escalation in the prices and that they wanted more money. Therefore, only from the date of refusal, the suit could be filed. There is also no evidence to show that the defendants were ever willing to perform their part of the contract. Applying the principles set out in the above decision of the Hon'ble Apex Court, the defendants also had not come to Court with clean hands as they had taken false and contradictory pleas and as such, the contention of the appellants cannot be accepted. 29. The plaintiffs have come to Court seeking the equitable remedy of specific performance and have complied with all the required ingredients whereas the defendants had not been honest in their conduct. They have not taken any steps to perform their part of agreement as stated in Ex. A.1. Secondly, deliberately they have avoided the receipt of notice though. The above conduct of the defendants collectively would go to show that they were not willing to perform their part of the contract which has driven the plaintiffs to move the Court of law. 30. On a careful consideration of respective contentions and in view of the qualitative and quantitative discussions mentioned supra and on assessment of the entire facts and circumstances of the case in a cumulative manner, this Court comes to the inevitable conclusion that though the plaintiffs was ready and willing to perform his part of agreement, the defendants were not willing to perform their part of the agreement, which has driven the plaintiffs to move the Court of law. In that view of the matter, the respondents / plaintiffs are entitled to the relief of specific performance as claimed in the suit and resultantly, the appeals fails and the decree granted in favour of the plaintiffs decreeing the suit requires no interference. In view of the foregoing discussion, the both the appeals fail and stand dismissed. Consequently, the common judgment and decree dated 16.12.2004 passed by the Principal Subordinate Judge, Tindivanam, in A.S. Nos. 59 of 2003 and 58 of 2003 respectively confirming the judgment and decree dated 30.6.2003 passed by the Principal District Munsif, Gingee, in O.S. Nos. 552 of 1989 and 552 of 1995 respectively are affirmed for the reasons assigned by this Court in these appeals. Having regard to the facts and circumstances of the case, the parties are directed to suffer their respective costs. Connected Miscellaneous Petition is closed.