Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 2466 (MAD)

Chellappa @ Arunachalam v. Hari Narayanan

2016-07-26

R.MALA

body2016
JUDGMENT : The second appeal has been filed against the judgment and decree made in A.S.No.108 of 1996 on the file of the Principal Sub Court, Tenkasi, dated 18.06.1999 reversing the judgment and decree in O.S.No.7 of 1996 on the file of the District Munsif Court, Shencottai, dated 24.04.1996. 2. The plaintiffs, who lost the appeal before the Principal Sub Court, Tenkasi, have come forward with this second appeal stating that they filed a suit for partition and also for specific performance and also for future profits stating that the suit schedule property is the ancestral property of Sudalai Pandaram. Sudalai Pandaram is having a son viz., Arunachala Pandaram. He has two sons viz., Veeraputhiran Pandaram and Muthiah Pandaram. Veeraputhiran Pandaram's Wife viz., Arumugathammal and they have three sons viz., Palanichamy, Karuppasamy, Subramanian and one daughter Palaniammal. Muthiah Pandaram's wife viz., third plaintiff Chidambaram Ammal and they are having one son viz., first plaintiff Chellappa @ Arunachalam and one daughter viz., second plaintiff Palaniammal. Since the property is ancestral property and Arunachalam died intestate, the two children viz., Veeraputhiran Pandaram and Muthiah Pandaram are entitled each half share. Now, the half share of Veeraputhiran Pandaram has been inherited by Arumugathammal and her children and sold the same in favour of the defendants 1 and 2. Therefore, the plaintiffs/appellants have filed the suit for partition of half share in the property. They have also filed the suit for specific performance stating that even though the defendants 1 and 2 have entered into the sale agreement, they have not performed their part of contract, in respect of the half share purchased from the legal heirs of Veeraputharan Pandaram. 3. The defendants filed a detailed written statement contesting the same stating that there was a partition taken place, in which, the plaintiffs were allotted northern 1/3 share, because, even in the year 1923, at the time of marriage of Arumugathammal with Veeraputhiran Pandaram, Arunachalam Pandaram had executed a settlement deed and hence, she is entitled 1/3 share on the southern portion and the northern portion was allotted to the plaintiffs and the middle portion was allotted to the children of Veeraputharan Pandaram and therefore, they are not entitled for any partition. 4. They have also raised a defence stating that there is no sale agreement and hence, the plaintiffs are not entitled decree of specific performance. 5. 4. They have also raised a defence stating that there is no sale agreement and hence, the plaintiffs are not entitled decree of specific performance. 5. The trial Court, after considering the plaint and written statement, framed necessary issues and after considering the oral and documentary evidence, decreed the suit, against which, an appeal was preferred and the appeal was allowed and the judgment and decree of the trial Court was set aside and consequently, the suit was dismissed, against which, the second appeal has been preferred. 6. At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal: “1.Whether the Lower Appellate Court failed to note than when defendants 1 and 2 did not file any written statement, the claim of the plaintiffs are accepted according to law and the decisions rendered by the Apex Court and High Court? 2. Whether the Lower Appellate Court erred in holding that the 3rd defendant is entitled to claim benefits under specific relief Act as bonafide purchaser for value? 3. Whether the Lower Appellate Court erred in rejecting the claim for partition and specific performance of contract especially when the appellants were ready and willing of sale agreement?” SUBSTANTIAL QUESTIONS OF LAW 1 TO 3: 7. The learned counsel appearing for the appellants would submit that in respect of partition is concerned, there was no partition was taken place. The total extent of suit property is 3-3/4 cents, but, in the written statement, they have stated that they are allotted northern side 1-1/4 cents in favour of the plaintiffs/appellant. But, the appellants are entitled ½ share in the suit property and that factum was not considered by the first appellate Court. 8. He has further submitted that Ex.B2, settlement deed has not accepted and acted upon. The defendants 1 and 2 had entered into appearance, subsequently, they were set exparte. During the pendency of the suit, they sold the property to the third defendant. Hence, the third defendant is the pendente lite purchaser and he is not entitled to raise the plea on the footing of the defendants 1 and 2 and hence, the trial Court judgment and decree have to be restored and the first appellate Court's judgment and decree have to be set aside and prayed for a decree. 9. Hence, the third defendant is the pendente lite purchaser and he is not entitled to raise the plea on the footing of the defendants 1 and 2 and hence, the trial Court judgment and decree have to be restored and the first appellate Court's judgment and decree have to be set aside and prayed for a decree. 9. He has further stated that in respect of specific relief is concerned, the third defendant is not the competent person to question the oral sale agreement between the defendants 1 and 2 and the appellants. Third defendant is not a bonafide purchaser for value. To substantiate his arguments, he relied on the decisions in A.Ramanathan Chetthiar V. R.Ranganayaki reported in (2008) 4 MLJ 766 and Chenchulakshmi V. Janardan Singh reported in 2000(1) MLJ 349 and prayed for setting aside the judgment and decree of the first appellate Court. 10. Resisting the same, the learned counsel for the respondents would submit that the partition has been clearly proved by the respondents. According to the appellants, the nature of the property is ancestral property and it is the duty of the plaintiffs/appellants to prove that the property is the ancestral and joint family property. However, Ex.B2, mortgage deed executed by the first appellant in favour of one Velu vathiyar shows that one of the boundary is shown as Veeraputhira Pandaram and they dealt with the property, which proves that partition has been taken place. 11. He has further submitted that even in the plaint pleading, it was stated that there was an agreement for partition. Hence, the trial Court considered the same and came to the correct conclusion. He has also submitted that Ex.B2 has been executed at the time of the marriage of Arumugathammal. As per proviso of Section 68 of the Indian Evidence Act is concerned, there is no need to examine the attestor, when the execution of document is not denied. Hence, out of 3-3/4 cents, the southern portion Door No.163 has been given to Arumugathammal under Ex.B2 and the middle portion has been given to the heirs of Veeraputhiran Pandaram and the northern portion has been given to the plaintiffs/appellants, who are the legal heirs of Muthiah Pandaram and hence, the partition has been proved and that has been rightly considered by the first appellate Court. There was mutation of revenue records and division has also been mentioned as J3.56, J3.57 and J 3.58, which was evidenced by the records viz., Ex.A1 patta and Ex.B1 and hence, he prayed for the dismissal of the second appeal in respect of partition is concerned. 12. In respect of the specific relief is concerned, it is true that the third defendant is the pendente lite purchaser and his right has not been deprived and his right has to be declared subject to the result of the suit. Ex.A2 and A3 are not a concluded contract and Ex.A2 is not an offer. The first defendant was willing to sell the property not only to the first plaintiff, but also, his sister Periya Palaniyachi. Ex.A2 has been written in respect of 1-1/2 cent. In Ex.A2, no description of property was mentioned and sale consideration has also not been mentioned and there is no evidence to show that it is concluded contract or sale agreement. To substantiate his argument, he has relied upon the decision in Panneerselvan P. V. A.Baylis reported in 2005 (5) CTC 17 and submitted that Ex.A2 is not a sale agreement and there is no oral sale agreement and the oral sale agreement alleged by the appellants/plaintiffs has not been proved. He has further submitted that the pendente lite purchaser can raise the plea that the plaintiffs are not ready and willing to perform his part of contract. It is the duty of the plaintiffs to plead and prove that the plaintiffs are always ready and willing to perform their part of contract. For the reason, he relied on the decision in Ram Awadh V. Achhaibar Dubbey reported in (2000) 2 Supreme Court Cases 428 and prayed for dismissal of the second appeal. 13. Considering the rival submissions made on either side and perusal of typed set of papers, the point to be decided in the second appeal is as to whether the suit property is ancestral property of Arunachala Pandaram or self acquired property of Arunachala Pandaram? 14. Once the plaintiffs/appellants raised the plea that the property is ancestral property and joint family property, it is the duty of the appellants to prove that the property is ancestral and joint family property of Arunachala Pandaram. But, the appellants have not filed any document. 14. Once the plaintiffs/appellants raised the plea that the property is ancestral property and joint family property, it is the duty of the appellants to prove that the property is ancestral and joint family property of Arunachala Pandaram. But, the appellants have not filed any document. Per contra, the respondents filed Ex.B2, in which, it is stated that at the time of Marriage of Arumugathammal with Veeraputhiran Pandaram itself, Arunachalam Pandaram has executed the settlement deed and she was given 1-1/4 cents in southern side. 15. Learned counsel for the appellants would submit that the settlement deed has not been accepted and acted upon, whereas, Ex.A1 patta has proved that the property has been divided as J3.56, J3.57 and J3.58 and there was mutation of revenue records. Considering the provisio of Section 68 of the Indian Evidence Act, non examination of attestor is not a fatal, since, there is no denial of settlement deed. 16. Further, Ex.B1 shows that even in 1987, they dealt with the property separately. In Ex.B1, one of the boundary has been shown as (xxxx). They mortgaged 1 cent in R.S.No.J 3.56. In Ex.B1, it has also been stated that (xxxx). Therefore, it is clear that out of 1-1/4 cents, 1 cent has been mortgaged. In such circumstances, I am of the view that the first appellate Court considered the documentary and oral evidence and came to the correct conclusion that the partition has already been taken place. 17. Further, averments of P.W.1 would show that if really, no partition was taken place, how he would intend to purchase the share of the legah heirs of Veeraputhiran Pandaram and direct the defendants 1 and 2 to purchase the property at the first instance and then only they purchased the same from them, which will falsify the same and since there was partition among the family and then only, the property has been sold in favour of the defendants 1 and 2 3/respondents 2 and 3. Even though the appellants are aware of the fact of alienation , neither they filed suit for partition nor they are objection for selling the property before partition. So, on cumulative effect, I am of the view that the first appellate Court has correctly held that the partition has already been held and in view of the partition, the sharers were enjoying the property independently and dealt with the property independently. So, on cumulative effect, I am of the view that the first appellate Court has correctly held that the partition has already been held and in view of the partition, the sharers were enjoying the property independently and dealt with the property independently. Hence, the findings of the first appellate Court is hereby confirmed. 18. Now, this Court has to decide as to whether the rejection of granting of decree of specific performance is sustainable? 19. Admittedly, there is no written sale agreement. The appellants would submit that the oral sale agreement coupled with Exs.A2 letter dated 18.03.1988 and A3 letter dated 30.08.1989. In Ex.A2 letter dated 18.03.1988, it was stated that since the first defendant purchased the property, there is no impediment to purchase the property by the appellants and his sister. Since she is intended to sell the property, she sent letter not only to the appellants, but also, to his sister Periya Palaniyachi. The first plaintiff has sent a letter dated 30.08.1989 Ex.A3 stating that he is willing to purchase the property. In both the letters viz., Exs.A2 and A3, the description of property has not been mentioned specifically and sale consideration has also not been mentioned. But, according to the argument, it was agreed what the sale consideration given by the defendants 1 and 2/respondents 2 and 3 and they are willing to pay the amount. However, perusal of Exs.B3 and B4 would show that the sale consideration was at Rs.14,500/-. But, there is no whisper in Exs.A2 and A3. Admittedly, the suit was filed in the year 1996 and the sale deeds are in the year 1987 and the letter has been written on 18.03.1988. 20. The learned counsel for the respondents would rely upon paras 11 to 14 of the decision in Panneerselvan P. V. A.Baylis reported in 2005 (5) CTC 17 , wherein it is held as follows: “11. It is significant to note that in the aforesaid “agreement”, which is not dated, there is no whisper that the defendant had agreed to sell 1 acre 30 cents of land nor there is anything to indicate that R.S.No.174/5 was to be sold. A fair reading of the “agreement” as a whole only indicates that the defendant had agreed to offer the lands worth Rs.1,00,000 “at the rate we have mutually agreed upon on individual integrity”. A fair reading of the “agreement” as a whole only indicates that the defendant had agreed to offer the lands worth Rs.1,00,000 “at the rate we have mutually agreed upon on individual integrity”. The agreement is totally silent about the rate per cent of the land. Even the agreement no where states about the extent of land to be sold. A bare reading of the agreement leaves no room for doubt that the terms were “beautifully vague” to say the least. The agreement does not indicate that if the defendant is not able to purchase 4 acres 15 cents of land, he would sell 1 acre 30 cents of land in R.S.No.174/5. 12. At this stage, it is necessary to note the contention raised by the learned Senior Counsel for the respondent/plaintiff to the effect that the document clearly indicates that the parties had “mutually agreed upon” the rate and since the defendant has not come our with any clear statement regarding the rate, the plaintiff's case ought to have been accepted. 13. We do not think such a contention can be countenanced, more particularly, in a suit for specific performance of a contract. Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which is capable of being specifically enforced. 14. In the present case, the only certainty is regarding the total consideration amount of Rs.1,00,000, which was admittedly paid to the defendant. However, neither the identity of the land to be sold nor the extent of land to be sold nor even the rate of land per cent had been indicated. In such a scenario, it is difficult to accept the contention of the learned Senior Counsel for the respondent that a completed agreement was in existence between the parties.” Perusal of the decision would show that the said decision is squarely applicable to the facts of the present case. There is no concluded contract and no specific survey number has been given and neither the advance nor sale consideration has been mentioned. There is no concluded contract and no specific survey number has been given and neither the advance nor sale consideration has been mentioned. Even though, offer is made for two persons, after 1-1/2 years, it was stated that the first plaintiff is ready and willing to purchase the property. Therefore, I am of the view that the above citation is squarely applicable to the facts of the present case. On considering the facts and circumstances of the case along with Exs.A2 and A3 and evidence, I am of the view that there is no concluding contract for sale of the suit property. 21. The learned counsel for the respondents has submitted that since the first plaintiff is ready and willing to perform his part of contract, that can be raised by the subsequent purchaser of the property or the legal heir, who is the defendants in the suit. It is open to any defendants to contend and establish that the mandatory requirement of Section 16(c) of the Specific Relief Act has not been complied with and it is for the Court to determine whether, it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. The relevant paras 5 and 6 of the decision in Ram Awadh V. Achhaibar Dubbey reported in (2000) 2 Supreme Court Cases 428, are extracted herein: “5. Section 16 of the Specific Relief Act, 1963 reads: “16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a)-(b) ............... (c) 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 the performance of which has been prevented or waived by the defendant. 6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a)(b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) of the Specific Relief Act has not been complied with and it is for the Court to determine whether, it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. 22. The letter Ex.A2 is dated 18.03.1988. The first plaintiff sent a reply Ex.A3 dated 30.08.1989, after 1-1/2 years. The acknowledgement card is dated 05.09.1989. On 18.09.1989, the first plaintiff sent lawyer notice to the defendants under Ex.A5 and effected paper publication under Ex.A6. In Ex.A6, it was not mentioned about the sale agreement, Hence, the argument that there was an oral sale agreement is unacceptable. The first defendant received Ex.A5 notice and sent a reply under Ex.A7 on 25.09.1989, which shows that with an intention to file a suit for specific performance, the plaintiff created Ex.A3 dated 30.08.1989 and immediately, he issued a notice for specific performance. There is no evidence to show that after the receipt of Ex.A3, the defendants 1 and 2 are willing to sell the property. In such circumstances, as already stated, there is no concluded contract for sale agreement. 23. The learned counsel for the appellants relied upon paras 17 and 26 of the decision in A.Ramanathan Chetthiar V. R.Ranganayaki reported in (2008) 4 MLJ 766 , which are extracted herein: “17. The perusal of the aforesaid extract and more so, the entire judgment, would highlight the fact that the subsequent purchaser of the suit property cannot be heard to contend the facts relating to the transaction which emerged between the parties to the agreement to sell and at the most the subsequent purchaser could contend that he is a bona fide purchaser for value without notice of any dispute between the parties to the agreement to sell. Accordingly, if viewed, ex facie and prima facie, it is clear that the third defendant who remained exparte before the trial Court and had not filed the written statement, is having no right to canvass the case of the first defendant and pick holes in the case of the plaintiff. 26. To the risk of repetition without being tautologous, I would like to highlight that these pleas of the third defendant are considered purely out of academic interest and the third defendant in stricto sensu cannot legally canvass on behalf of the first defendant such pleas.” The above citation is not applicable to the facts of the present case. Because, in the said case, it was held that the subsequent purchaser of the suit property cannot be heard to contend the facts relating to the transaction which emerged between the parties to the agreement to sell. But, here, it is the duty of the plaintiffs/appellants to prove that the contract or sale agreement is true and genuine and they are always ready and willing to perform their part of contract. But, they have not proved. 24. The learned counsel for the appellants has also relied on the decision in Chenchulakshmi V. Janardan Singh reported in 2000 (1) MLJ 349 and submitted that the third defendant/first respondent is alone contesting the suit and he is not the bonafide purchaser. He has further submitted that even though, the suit has been filed on 22.03.1990, the defendants 1 and 2 entered appearance on 20.06.1991 through counsel and the property has been sold on 28.11.1991 and the defendants 1 and 2 were set exparte on 19.03.1992 and therefore, the third defendant/first respondent is the pendente lite purchaser and it is hit by lis pendense. The relevant portion in para 17 of the said decision is extracted herein: “17. ............ Therefore, there is no scope for a purchaser of peroperty pendente lite to contend that he is a bona fide purchaser for value without notice or to say that he was not aware of the proceeding and had no notice of the pendency of the proceeding. It has become necessary to point out this aspect for the reason that in his e3vidence, P.W.1 would say that he was not aware of the pendency of the proceeding and had no notice. It has become necessary to point out this aspect for the reason that in his e3vidence, P.W.1 would say that he was not aware of the pendency of the proceeding and had no notice. Even assuming for a moment that the evidence tendered by him is true, even then that will not save him from the tentacles of Sec.52 of the Transfer of Property Act. Equally, the contention that property was purchased paying valuable consideration, is of no avail since Sec.52 of the Transfer of Property Act does not purport to exclude purchaser of the property for value from its operation. On the other hand, the section is emphatic in its terms that the property cannot be transferred or otherwise dealt with by any party to the suit except under the authority of the court and on such terms as it may impose. I have also referred to absence of pleadings on the aspect of fraud and collusion.” But, the above said citation is not applicable to facts of the present case. The pendente lite purchaser can contest the suit and his right to be accrued subject to the result of the suit. If the plaintiff has proved his case, the pendente lite purchaser is not having any right over the property. In the said citation, the plaintiffs have proved their case and their right has been confirmed. But, here, in the present case, the appellants have not proved their case i.e. oral sale agreement. 25. In view of the above discussion, I am of the view that there is no concluded contract and hence, the plaintiffs are not proved the oral sale agreement and hence, they are entitled for decree of specific performance and hence, the first appellate Court has considered all the aspects in a proper perspective and came to the correct conclusion. The substantial questions of law 1 to 3 are answered accordingly. 26. In view of the answer given above, the second appeal is liable to be dismissed and the judgment and decree of the first appellate Court is liable to be confirmed. 27. Accordingly, the second appeal is dismissed. The judgment and decree of the first appellate Court is hereby confirmed. Both parties are directed to bear their own costs.