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2021 DIGILAW 3260 (MAD)

T. Ravindran v. S. Anandhavalli

2021-11-23

A.D.JAGADISH CHANDIRA

body2021
JUDGMENT : Defendant, who suffered a decree of specific performance before the courts below, has come up with the present Second Appeal, which came to be admitted by this court on 4.3.2019 on the following substantial questions of law:- “(1) Whether the courts below are correct in granting the decree for specific performance of unregistered sale deed Ex.A3, when the plaintiff has not exhausted his remedy under Section 35 of the Registration Act? (2) Whether the courts below are correct in decreeing the suit for specific performance without giving a finding as to whether the plaintiff is ready and willing to perform his part of the contract as mentioned under Section 16(c) of the Specific Relief Act? (3) Whether courts below are correct in invoking the bar under Section 92 of the Indian Evidence Act against the defendant, when PW1 and PW2 have deposed contrary to the recitals contained in Ex.A3 in the matter of passing of consideration? (4) Whether the courts below are correct in decreeing the suit for specific performance when the plaintiff herself has stated about the handing over of the title deeds-Exs.A1 and A2 contrary to her pleadings?” 2. The case of the plaintiff is as under:- The suit property was purchased by one S.Vasantha, daughter of the plaintiff and husband of the defendant from one A.Mumtaj Begum under a registered sale deed dated 9.2.2001. The said Vasantha died on 31.12.2011 leaving her husband, the defendant and she had no children. The defendant had intended to sell the suit property to the plaintiff for a sale consideration of Rs.2,40,000/- and thereupon entered into a sale deed dated 30.5.2012 and signed on the sale deed engrossed on the stamp papers on receipt of the entire sale consideration of Rs.2,40,000/- and handed over the original title deeds to the plaintiff, however, when it was presented for registration, he was suddenly missing from the scene and evaded to cooperate for registration of the sale deed when he was contacted over phone and ultimately, on 3.9.2012, he had refused to come to Registrar's office. Having come to know that the defendant is attempting to sell the suit property to somebody else, the plaintiff had filed the suit seeking the relief of specific performance. 3. The case of the defendant is as under:- The suit is not maintainable either in law or on facts. Having come to know that the defendant is attempting to sell the suit property to somebody else, the plaintiff had filed the suit seeking the relief of specific performance. 3. The case of the defendant is as under:- The suit is not maintainable either in law or on facts. The plaintiff had no source of income or any property in her name except the family pension of Rs.7000/- per month and she was being helped by the defendant's wife for her medical treatment. Two months prior to the death of the defendant's wife, the plaintiff was residing in the house of the defendant and his wife and during that time, she was in possession of keys of the bureau and after the death of Vasantha, wife of the defendant, the plaintiff had taken away all the property documents, gold ornaments and other important things to her another daughter's house. The defendant never intended or agreed to sell the suit property to the plaintiff and he did not receive any sale consideration. The plaintiff alongwith her another son in law Thirunavukkarasu obgained signatures of the defendant in blank papers under the guise of formalities for getting death benefits of the deceased Vasantha and using such blank documents, the plaintiff had filed the suit and hence, the suit has to be dismissed. 4. On the above pleadings, the Trial Court had framed the following issues for consideration:- (i) Whether the plaintiff is ready and willing to perform her part of contract? (ii) Whether the plaintiff is entitled to the relief of specific performance as prayed for? (iii) Whether the allegation that the plaintiff misused the signature obtained from defendant as sale agreement is true? (iv) To what relief the plaintiff is entitled? 5. During the trial, the plaintiff examined herself as PW1 while examining two more witnesses as P.Ws.2 and 3 and marked four documents as Exs.A1 to A4. On the side of the defendant, he examined himself as DW1 whereas, no document was marked on his side. 6. On analysis of oral and documentary evidence, the Trial Court had decreed the suit in favour of the plaintiff, aggrieved against which, the defendant had preferred the appeal before the Principal District Judge, Thanjavur in A.S.No.9 of 2018. 7. On the side of the defendant, he examined himself as DW1 whereas, no document was marked on his side. 6. On analysis of oral and documentary evidence, the Trial Court had decreed the suit in favour of the plaintiff, aggrieved against which, the defendant had preferred the appeal before the Principal District Judge, Thanjavur in A.S.No.9 of 2018. 7. In the Appeal, the defendant had reiterated his contentions before the Trial Court viz., the plaintiff had no source of income and the defendant had never intended to sell the suit property to the plaintiff and his signatures were obtained in blank papers by the plaintiff and her another son in law Thirunavukkarasu under the guise of arranging for death benefits of the defendant's wife. 8. The following points were taken up by the appellate court for consideration:- (i) Whether the plaintiff is entitled for specific performance of agreement? (ii) Whether the signature of defendant in the draft sale deed is true and valid and whether sale consideration has been paid by the plaintiff? (iii) Whether this appeal is to be allowed as prayed for? 9. The appellate Court, on reappraisal of the oral and documentary evidence, had concurred with the view of the Trial Court and dismissed the appeal against which, the present Second Appeal has been filed by the defendant. 10. Learned counsel for the appellant would submit when it is claimed by the plaintiff that the entire consideration has been paid and the draft sale deed had been executed, the courts below erred in decreeing the suit when the mandatory requirement of Section 16(c) of the Specific Relief Act has not been complied with. By relying the decision of the Apex Court in Kamal Kumar v. Premlata Joshi and others reported in 2019 SCC OnLine SC 12 and Padmakumari and others v. Dasayyan and others ( (2015) 8 SCC 695 ), the learned counsel would contend that the pleadings in the plaint are not in conformity with Order 6 Rule 3 CPC and Clause 3 of Form 47 in Appendix "A" of CPC. He would further submit that the courts below erred in decreeing the suit for specific performance without giving a finding as to whether the plaintiff was ready and willing to perform her part of the contract. He would further submit that the courts below erred in decreeing the suit for specific performance without giving a finding as to whether the plaintiff was ready and willing to perform her part of the contract. He would also submit that the courts below erred in granting a decree of specific performance of an unregistered sale deed, Ex.A3 when the plaintiff has failed to exhaust her remedy under Section 23 of the Registration Act by not presenting the sale deed for registration within four months. 11. Per contra, learned counsel for the respondent/plaintiff would submit that it is a case where the entire sale consideration has been paid and a draft sale deed, Ex.A3 was executed and signed by the appellant/defendant, wherein the appellant had accepted receipt of the entire consideration. He would also submit that the plaintiff had specifically, at para 6 of the plaint, pleaded that the defendant had been satisfied by paying the entire sale consideration and she had performed her part of the contract in toto. He would further submit that it is the settled proposition of law laid down by the Apex Court that for determining the readiness and willingness, the suit has to be read as a whole and the pith and substance being that "readiness and willingness" has to be in spirit and not in the letter and form. He would further submit that the contentions at para 6 of the plaint complies with Form 47 of the Appendix "A" CPC and both the courts below, taking into consideration the entire evidence and materials on record, have held that the plaintiff has proved her readiness and willingness on her part and moreover, in this case, the plaintiff has proved her case by examining herself and two other witnesses and the defendant had handed over the original parent deeds and having come to the Registrar's Office, had sneaked away for reasons best known to him. He would also submit that the Trial Court, taking into consideration the recitals of Ex.A3, has decreed the suit as prayed for. In support of his contentions, the learned counsel for the respondent/plaintiff relied on the following decisions:- (i) Sughar Singh v. Hari Singh (dead) through L.R.s. and others (2021) SCC OnLine SC 975) (ii) S.Kaladevi vs. V.R.Somasundaram and others (2010) 5 SCC 401 . 12. In support of his contentions, the learned counsel for the respondent/plaintiff relied on the following decisions:- (i) Sughar Singh v. Hari Singh (dead) through L.R.s. and others (2021) SCC OnLine SC 975) (ii) S.Kaladevi vs. V.R.Somasundaram and others (2010) 5 SCC 401 . 12. To be precise, the appellant/defendant claims that the plaintiff had not averred her readiness and willingness to perform her part of the contract and not complied with the provisions of Section 16(c) of the Specific Relief Act and the pleadings in the plaint are not in conformity with Order 6 Rule 3 CPC and clause 3 of Form 47 in Appendix "A" of CPC and that the document in question being an unregistered one, she had failed to present the same under Section 23 of the Registration Act within four months whereas the respondent/plaintiff claims that the entire sale consideration was paid by the plaintiff and thereby the question of absence of readiness and willingness on the part of the plaintiff will not arise, rather, it is only the defendant, who ran away from the Sub Registrar's Office after coming over there for executing the sale deed and the plaintiff had averred in this regard at para 6 of the plaint that the entire sale consideration was paid by the plaintiff and she had performed her part of the contract. 13. Having heard the learned counsel appearing for the parties, this court finds that the appellant/defendant on one hand denies the execution of the document and its genuineness as if he had signed in blank stamp papers under the impression that they were obtained for arranging the death benefits of his wife, but, on the other hand, he has taken recourse to the legal aspects as narrated above. 14. When once the signatures in the draft sale deed Ex.A3 is admitted, the burden will be on the signatory, the defendant to prove his case that it was not meant for such a document. The courts below have properly appreciated the oral and documentary evidence and found that the defendant's signatures were found in 9 stamp papers with different denominations from Rs.15,000/- to Rs.100/-, which were used for the draft sale deed and also on the verification form and patta transfer form which are printed ones and no prudent man would sign in blank stamp papers for a denomination of Rs.15,000/-. The defendant not being an illiterate, his contention that he had signed in blank stamp papers with such huge denominations is nothing but cock and bull story which was rightly disbelieved by the courts below. 15. Sofar as the legal aspects are concerned, this court feels that it will be apposite to see what is the legal position that prevails now. In Kamal Kumar v. Premlata Joshi and others reported in 2019 SCC OnLine SC 12, it has been held as under:- "10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47 & 48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts." 16. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts." 16. In Padmakumari and others v. Dasayyan and others ( (2015) 8 SCC 695 ), it has been held as under:- "21. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix 'A', extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus: "6. The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs. 63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992." 22. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16(c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue (i) is erroneous in law and is liable to be set aside." 17. The above decisions relied on by the learned counsel for the appellant generally speaks about the guidelines to be adhered by the courts while granting the discretionary relief of specific performance and the averments to be made by the plaintiff while seeking the relief. 18. The above decisions relied on by the learned counsel for the appellant generally speaks about the guidelines to be adhered by the courts while granting the discretionary relief of specific performance and the averments to be made by the plaintiff while seeking the relief. 18. In a recent decision in Sughar Singh v. Hari Singh (dead) through L.R.s. and others (2021) SCC OnLine SC 975), a Division Bench of the Apex Court, following the view taken in its earlier three Judges Bench decision in Syed Dastagir v. T.R.Gopalakrishna Setty (1999) 6 SCC 37 ) to the effect that the language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and continues to be willing to perform his part of the contract and to insist on mechanical reproduction of the exact words of the statute would be to insist on the form rather than the essence and thereby the absence of form cannot dissolve an essence if already pleaded and the decision in C.S.Venkatesh v. A.S.C. Murthy (2020) 3 SCC 280 ), to the effect that it is not necessary for the plaintiff to produce ready money to establish his readiness and willingness to pay the consideration, but, it is mandatory on his part to prove that he had the means to generate consideration amount within the time frame contemplated in the contract, has held as under:- "10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant – executant of the agreement to sell, while exercising the discretion judiciously." 19. In S.Kaladevi vs. V.R.Somasundaram and others (2010) 5 SCC 401 , it has been held that the admissibility of unregistered sale deed as evidence is not hit by Section 3(b) of the Specific Relief Act, 1963. 20. In Motilal Jain v. Ramdasi Devi (Smt) and others (2000) 6 SCC 420 ), it has been held that where major portion of the consideration (two-thirds in that case) was paid at the time of execution of the contract, held, his willingness to pay the remaining amount is apparent. 21. On analysis of the factual circumstances of the present case in the light of the law laid down in the above decisions, this court finds that the plaintiff having paid the entire sale consideration of Rs. 2,40,000/- there is no question of proving readiness and willingness on the part of the plaintiff. Further, the averment at para 6 of the plaint and reading of the plaint in whole disclose the essence and it clearly indicates that the plaintiff was ready and willing to fulfil her part of the obligation. 2,40,000/- there is no question of proving readiness and willingness on the part of the plaintiff. Further, the averment at para 6 of the plaint and reading of the plaint in whole disclose the essence and it clearly indicates that the plaintiff was ready and willing to fulfil her part of the obligation. The pleadings in the plaint cannot be deemed to be not in conformity with Order 6 Rule 3 CPC and clause 3 of Form 47 in Appendix "A" as the averment required under Order 6 Rule 3 of CPC and clause 3 of Form 47 in Appendix "A" is not a mathematical formula capable of being expressed only in certain specific words and terms. 22. So far as the ground ground raised by the defendant with regard to non-compliance of Section 23 of the Registration Act is concerned in respect of presentation of the sale deed, it will not be applicable to the present case in view of the facts of the case that the appellant/defendant had slipped away from the Sub Registrar's office for reasons best known to him. 23. In view of the above, this court finds that the substantial questions of law require to be answered against the appellant. There is no error or infirmity in the judgment and decree of the courts below and they hold good. The Second and is, accordingly, dismissed. No costs.