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2022 DIGILAW 192 (MAD)

Robinson v. Arunadas (died)

2022-01-21

R.VIJAYAKUMAR

body2022
JUDGMENT : 1. The defendants 4 and 5 are the appellants. 2. The plaintiff filed O.S.No.53 of 1993 before the Sub Court Kuzhithurai for specific performance of an agreement of sale dated 02.01.1993. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.8 of 1999 before the Additional District Court, Kanyakumari at Nagercoil. The learned First Appellate Judge partly decreed the suit to the extent of the share of the first defendant in the suit schedule property after depositing 50% of the sale consideration, but dismissed the suit with regard to the share of the second defendant. As against the same, the defendants 4 and 5 have filed the present second appeal. 3. The plaintiff had contended that the suit schedule properties are owned by the defendants 1 and 2. The third defendant is the husband of the second defendant. The plaintiff had further contended that on 02.01.1993, the first defendant and the third defendant after being authorised by the second defendant, executed an agreement for sale of the suit schedule property in favour of the plaintiff. According to the plaintiff, the sale consideration was fixed at Rs.65,000/- and an advance amount of Rs.1000/- was received by the defendants 1 and 2 on the date of the agreement. The period of agreement was fixed as three months to end of 31.03.1993. Though the plaintiff was ready with funds, the defendants have not come forward to execute the sale deed, a legal notice was issued on 18.02.1993. On 01.03.1993, the first defendant sent a reply that he has already sold the property to third party. After verification, the plaintiff came to know that the defendants 4 and 5 have purchased the suit schedule property from the defendants 1 and 2. Hence, the present suit for specific performance. 4. The first defendant filed a written statement disputing the execution of the sale agreement and receipt of the advance amount on 02.01.1993. The first defendant further contended that he had entered into a sale agreement with the fourth defendant on 19.10.1992 for a sale consideration of Rs.70,000/- and subsequently, a sale deed was executed in favour of the defendants 4 and 5 on 12.02.1993. According to the first defendant, defendants 4 and 5 are in possession of the suit schedule property from the date of sale deed. 5. The fourth defendant filed a written statement disputing the suit sale agreement. According to the first defendant, defendants 4 and 5 are in possession of the suit schedule property from the date of sale deed. 5. The fourth defendant filed a written statement disputing the suit sale agreement. According to the fourth defendant, the suit schedule properties are owned by the defendants 1 and 2 and they have executed a sale agreement in his favour on 19.10.1992 and based upon the said sale agreement, a sale deed was executed in favour of the defendants 4 and 5 on 12.02.1993 and they have taken possession of the suit schedule properties. The fourth defendant further contended that the suit sale agreement is not a genuine one and it cannot be acted upon. The fourth defendant further contended that they are not aware of the said sale agreement in favour of the plaintiff and they are the bona-fide purchasers for valuable consideration without notice of the alleged suit sale agreement. 6. The trial court arrived at a finding that the suit sale agreement has been executed by the defendants 1 and 3. The trial Court confirmed the genuineness and validity of Exhibit A1 suit sale agreement, but the trial Court found that only the defendants 1 and 2 are the absolute owners of the suit schedule property. On the other hand, the suit sale agreement has been entered into by the first defendant and the third defendant in favour of the plaintiff. The third defendant though he is the husband of the second defendant, has no right to enter into the sale agreement. Since the sale agreement has been entered into by a person who has no title to the suit schedule property, the said sale agreement cannot be considered to be a legally enforceable agreement. The trial Court also found that the sale agreement alleged by the defendants under Exhibit B2 on 19.10.1992 is not a genuine one. But the trial Court proceeded to dismiss the suit on the ground that the suit sale agreement has not been signed by one of the original owners of the property namely the second defendant. 7. The trial Court also found that the sale agreement alleged by the defendants under Exhibit B2 on 19.10.1992 is not a genuine one. But the trial Court proceeded to dismiss the suit on the ground that the suit sale agreement has not been signed by one of the original owners of the property namely the second defendant. 7. The First Appellate Court after going through the oral and documentary evidence, arrived at a finding that the suit sale agreement is a genuine one and had also concurred with the findings of the trial Court that Exhibit B2 sale agreement projected by the defendants 4 and 5 is not a genuine one. The First Appellate Court found that though the defendants 1 and 2 are the owners of the suit schedule properties, the agreement has been executed by the defendants 1 and 3 in favour of the plaintiff. The agreement for sale is specifically enforceable only to the extent of half share of the first defendant and will not binding upon the second defendant with regard to her half share. The First Appellate Court also found that the defendants 4 and 5 are not the bonafide purchasers for valuable consideration without notice of the earlier agreement. On the said findings, the First Appellate Court decreed the suit in part with regard to half share of the first defendant and directed the plaintiff to deposit 50% of the sale consideration. The said judgment and decree is challenged by the defendants 4 and 5 in the second appeal. 8. The second appeal has been admitted on the following substantial question of law: “Whether the judgment of the lower Appellate Court decreeing the suit for specific performance by reversing the judgment of the learned trial Judge is opposed to the evidence on record?” 9. The learned counsel for the appellants contended that a perusal of Exhibit A1 sale agreement will clearly indicate that a third party has signed in the sale agreement on behalf of the second defendant. Hence, it is evident that even at the time of sale agreement, the plaintiff was aware that the third defendant was not the owner of the suit schedule property. Hence, it is evident that even at the time of sale agreement, the plaintiff was aware that the third defendant was not the owner of the suit schedule property. The learned counsel further contended that the appellants are the bonafide purchasers for valuable consideration without notice of the sale agreement and hence, even assuming that Exhibit A1 is a validly executed document, the same cannot be enforced as against the defendants 4 and 5. He further contended that the First Appellate Court had erred in invoking Section 12 of the Specific Relief Act for granting a decree for half share in favour of the plaintiff. According to the learned counsel for the appellants, Section 12(3) of the Specific Relief Act can be invoked only where terms of the contract permit segregation of the rights and interest of the parties in the property. The learned counsel for the appellants relied upon Paragraph No.77 of the judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 3858 . 10.The learned counsel for the appellants further contended that the second defendant being not a party to the suit sale agreement, the plaintiff cannot obtain sale of undivided share of the first defendant with a right to force partition on the second defendant who was not a party to the agreement. He relied upon Paragraph No.31 of the judgment of the Hon'ble Supreme Court reported in AIR 2005 SC 1836 . 11. The learned counsel for the appellants further contended that granting a decree for specific performance is always in the discretion of the Court and such a discretion cannot be exercised in favour of the plaintiff for forcing to purchase half share in the suit schedule property when he has not come forward to pay whole of the consideration. He relied upon Paragraph Nos. 10 and 11 of the judgment of the Hon'ble Supreme Court reported in AIR 1964 SC 1385 . 12. Hence, the learned counsel for the appellants contended that the First Appellate Court ought to have dismissed the suit in entirety, in view of the fact that Exhibit A1 sale agreement is not legally enforceable. He relied upon Paragraph Nos. 10 and 11 of the judgment of the Hon'ble Supreme Court reported in AIR 1964 SC 1385 . 12. Hence, the learned counsel for the appellants contended that the First Appellate Court ought to have dismissed the suit in entirety, in view of the fact that Exhibit A1 sale agreement is not legally enforceable. He further contended that when the plaintiff was aware that the second defendant is the real owner of the property even at the time of execution of Exhibit A1, he cannot now seek the discretion of the Court, to specifically enforce the part of the contract with regard to half share of the first defendant. 13. Per contra, the learned counsel for the respondents contended that both the Courts below have concurrently held that Exhibit A1 sale agreement is true, valid and genuine one. The Courts below have concurrently found that Exhibit A1 has been executed by the first defendant. He has also contended that the contention of the defendants 4 and 5 with regard to Exhibit B2 sale agreement has been rejected by both the Courts below on the ground that the same has been antedated in order to defeat the rights of the plaintiff. In view of the said findings, defendants 4 and 5 can never be considered to be the bonafide purchasers for valuable consideration. He further contended that Exhibit B1 sale deed in favour of the defendants 4 and 5 refers only to an oral sale agreement on 19.10.1992, but suddenly a document has been created and introduced in the pleadings at the time of filing of the written statement. Hence, he contended that both Exhibits B1 and B2 are not genuine documents and they have been executed by the defendants 1 and 2 only to defeat the rights of the plaintiff. 14. The learned counsel for the respondents further contended that though the agreement may not be valid to the extent of the share of the second defendant, it is certainly valid to the extent of the share of the first defendant. The first defendant is a party to the contract and he is bound by the terms of the contract. He relied upon Paragraph No.12 of the judgment of the Hon'ble Division Bench of our High Court reported in 1993 (1) LW 599 . The first defendant is a party to the contract and he is bound by the terms of the contract. He relied upon Paragraph No.12 of the judgment of the Hon'ble Division Bench of our High Court reported in 1993 (1) LW 599 . The learned counsel further contended that the First Appellate Court has exercised its discretion and directed the specific performance of a part of the property namely the share of the first defendant instead of refusing the specific performance in its entirety. He relied upon Paragraph No.15 of the judgment of the Hon'ble Supreme Court reported in AIR 1995 SC 491 . He further contended that the First Appellate Court has power to modify the decree invoking Section 12 of the Specific Relief Act and grant a decree to the extent that the first defendant is able to perform his part of the contract. He relied upon Paragraph Nos.23 and 24 of the judgment of the Hon'ble Supreme Court reported in 2020 4 LW 626. Hence, he prayed for dismissal of the second appeal. 15. I have carefully considered the submissions on either side. 16. The plaintiff has specifically contended that defendants 1 and 3 have executed a sale agreement under Exhibit A1 in his favour. In order to enforce the said sale agreement, the plaintiff has issued a legal notice under Exhibit A2 on 18.02.1993. For the said legal notice, the first defendant has merely sent a reply on 01.03.1993 under Exhibit A6. In the said reply notice, without disputing the execution of Exhibit A1 sale agreement, the first defendant has merely stated that he had no absolute right and possession to the suit schedule property and the second defendant has never executed the suit sale agreement. For the first time, the first defendant has disputed the sale agreement only in the written statement. Hence, this Court can safely come to a conclusion that the first defendant had not disputed the sale agreement and the plaintiff is successful in proving Exhibit A1 sale deed. In fact both the Courts below have arrived at a concurrent finding with regard to the execution and genuineness of Exhibit A1 sale agreement. 17. The defendants 4 and 5 have contended that they are the bonafide purchasers for valuable consideration without notice of the previous sale agreement. In fact both the Courts below have arrived at a concurrent finding with regard to the execution and genuineness of Exhibit A1 sale agreement. 17. The defendants 4 and 5 have contended that they are the bonafide purchasers for valuable consideration without notice of the previous sale agreement. According to the defendants 4 and 5, defendants 1 and 2 have executed Exhibit B2 sale agreement in their favour on 19.10.1992 and thereafter, executed a registered sale deed under Exhibit B1 on 12.02.1993. A perusal of Exhibit B1 sale deed will show that there was an oral agreement between the defendants 4 and 5 on 19.10.1992 and there is no reference about any written agreement on the said date. This Exhibit B2 written sale agreement has been suspected by the Courts below and they have arrived at a finding that Exhibit B2 sale agreement has not been proved. Hence, this Court can come to a conclusion that defendants 4 and have come out with a false case of a written sale agreement dated 19.10.1992 which is contrary to the recital in Exhibit B1 sale deed. 18. In view of the said discussion, defendants 4 and 5 can never be considered to be the bonafide purchasers for valuable consideration. 19. The Courts below have concurrently found that Exhibit A1 suit sale agreement has been executed by the first defendant and it is a genuine one which has not been disputed in Exhibit A6 reply notice sent by the first defendant. Now the only issue that arises for consideration is whether the plaintiff will be entitled to seek specific performance with regard to half share of the first defendant in the suit schedule property or whether the suit for specific performance has to be dismissed in entirety on the ground that the second defendant who is a co-owner of the property has not joined in execution of suit sale agreement. 20. The learned counsel for the appellants relied upon Paragraph No.77 of the judgement of the Hon'ble Supreme Court reported in AIR 2004 SC 3858 which reads as follows: “77.In our considered opinion, Section 12(3) of the Specific Relief Act can be invoked only where terms of contract permit segregation of rights and interest of parties in the property. 20. The learned counsel for the appellants relied upon Paragraph No.77 of the judgement of the Hon'ble Supreme Court reported in AIR 2004 SC 3858 which reads as follows: “77.In our considered opinion, Section 12(3) of the Specific Relief Act can be invoked only where terms of contract permit segregation of rights and interest of parties in the property. The provision cannot be availed of when the terms of the contract specifically evince a intention contrary to segregating interest of the vendor having life interest and spes secessions of reversioners. Neither law nor equity is in favour of the vendee to grant Specific Performance of the Contract”. 21. The learned counsel point that Section 12(3) of the Specific Relief Act cannot be invoked. A perusal of the judgment of the Hon'ble Apex Court will make it clear that the said provision of Section 12(3) of the Specific Relief Act cannot be invoked only when the terms of contract specifically evince an intention contrary to segregating interest of the vendor having life interest and spes successions of reversioners. In the present case, there is no clause in the document to the effect which prohibits segregation of the share of the first defendant from that of the second defendant. Hence, the judgment relied upon by the learned counsel for the appellants is not legally acceptable on the facts and circumstances of the case. 22. The learned counsel for the appellants further relief upon Paragraph No.31 of the judgment of the Hon'ble Supreme Court reported in AIR 2005 SC 1836 and the same reads as follows: “31.Section 12 of the Specific Relief Act, in our considered opinion, would be of no assistance in the situation obtaining here. In the absence of sisters being parties to the agreement, the vendee can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act cannot be invoked by the vendee to obtain sale of undivided share of the two brothers with a right to force partition on the sisters who were not parties to the agreement of sale. Such a relief under Section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the sale agreement” 23. Such a relief under Section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the sale agreement” 23. The learned counsel contends that a purchaser cannot purchase an undivided share from one of the co-owners and force the other co-owners for a partition who was not a party to the suit sale agreement. In the present case, the third defendant who is the husband of the 2nd defendant had entered into an agreement on behalf of the second defendant. Hence, it is clear that the third defendant was acting on behalf of the second defendant even though he will not be legally entitled to convey the share of the second defendant. The fact that the defendants 1 and 2 have not chosen to examine, will clearly indicate that Exhibit A1 sale agreement is a validly executed agreement. That apart, if really the second defendant was aggrieved over the execution of the suit sale agreement by her husband, she would have certainly examined herself to dispute the alleged authorisation given by her in favour of her husband, third defendant. The Court has to necessarily draw adverse inference over the fact that neither the first defendant nor the second defendant have entered into the box to support their pleadings. Hence, the judgment relied upon by the learned counsel for the appellants that a partition cannot be forced upon the non-contracting party is not applicable to the facts of the present case. 24. In the present case, the second defendant was very well aware of the fact that the first defendant had executed a sale agreement along with her husband. The learned counsel for the appellants had relied Paragraph Nos. 10 and 11 of the judgment of the Hon'ble Supreme Court reported in AIR 1964 SC 1385 which reads as follows: “10. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance. 11. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance. 11. No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus: Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property. In the result, the appeal fails and is dismissed with costs” 25. The learned counsel contends that a decree for specific performance is always in the discretion of the Court and such a discretion can also be exercised by refusing a decree for specific performance. Hence, he prayed for allowing the second appeal. 26. The learned counsel for the respondents had relied upon the judgment of the Hon'ble Division Bench of our High Court reported in 1993(1) LW 599 to contend that where the suit agreement has been held to be valid and genuine, the said agreement can be enforced to the extent of share of the contracting party, even though the same cannot be executed as against the share of the non-contracting party. He relied upon Paragraph No.12 of the said judgment which reads as follows” “12.The judgment will not help the defendants to contend that no decree should be passed in favour of the plaintiff for specific performance of a part of the contract. It should be remembered that in this case, the plaintiff got a decree for specific performance as prayed for by him in the trial Court. It is only defendants 2 to 7 who have preferred this appeal. There is no appeal by the first defendant. In this appeal, the defendant 2 to 7 can only claim that the decree as against them is no sustainable. They cannot seek to have the decree against the first defendant set aside in the appeal. In so far as the first defendant is concerned, there can be no doubt whatever that he is bound by the contract and he is bound to execute the sale deed with reference to his share in the property. He has, in fact, stated in the course of the deposition that he is willing to do so. In the circumstances of the case, we are of the view that there is no reason for exercising our discretion against the plaintiff and refusing to grant specific performance in his favour particularly when he has succeeded in the trial Court.” 27. The learned counsel for the respondents also relied upon Paragraph No.15 of the judgment of the Hon'ble Supreme Court reported in AIR 1995 SC 491 to contend that the discretion should be exercised in directing specific performance of the contract by partial enforcement of the contract instead of refusing specific performance in entirety which would meet the ends of justice and the same reads as follows: “15.In view of the finding that the appellant had half share in the property contracted to be sold by Kartar Lal, his brother, the agreement of sale does not bind the appellant. The decree for specific performance as against Kartar Lal became final. Admittedly the respondent and her husband are neighbours.The appellant and his brother being co-parceners or co-owners and the appellant after getting the tenant ejected both the brothers started living in the house. As a prudent purchaser Joginder Nath ought to have made enquiries whether Kartar Lal had exclusive title to the property. Admittedly the respondent and her husband are neighbours.The appellant and his brother being co-parceners or co-owners and the appellant after getting the tenant ejected both the brothers started living in the house. As a prudent purchaser Joginder Nath ought to have made enquiries whether Kartar Lal had exclusive title to the property. Evidence of mutation of names in the Municipal Register establishes that the property was mutated in the joint names of the appellant and Kartar Lal and was in joint possession and enjoyment. The courts below, therefore, have committed manifest error of law in exercising their discretion directing specific performance of the contract for the entire property. The house being divisible and the appellant being not a consenting party to the contract, equity and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety, which would meet the ends of justice. Accordingly we hold that Joginder Nath having contracted to purchase the property, it must be referable only in respect of half the right, title and interest held by Kartar Lal, his vendor. The first respondent being successor in interest, becomes entitled to the enforcement of the contract of the half share by specific performance. The decree of the trial Court is confirmed only to the extent of half share in the aforestated property. The appeal is accordingly allowed and the decree of the High Court is set aside and that of the trial Court is modified to the above extent. The parties are directed to bear their own costs throughout” 28. The learned counsel for the respondents also relied upon a recent judgment of the Hon'ble Supreme Court reported in 2020-4-L.W-626 to contend that the specific performance decree could be passed to the extent of share of the contracting party, even though it may not be enforceable as against the share of the non-contracting party. The learned counsel for the respondents also relied upon a recent judgment of the Hon'ble Supreme Court reported in 2020-4-L.W-626 to contend that the specific performance decree could be passed to the extent of share of the contracting party, even though it may not be enforceable as against the share of the non-contracting party. He relied upon Paragraph Nos.24 and 25 of the said judgment which read as follows: “23.In view of the agreement and the admission made by the plaintiffs, we are of the opinion that it would be appropriate to modify the decree passed by the Courts below to the extent of 50 per cent of the shares of the deceased late.K.Basavaraja Urs and to set it aside with respect to the remaining ½ share of K.B.Ramchandra Raj Urs (defendant No.1) in the property, since the property devolved under Section 15 of the Hindu succession Act. 24. Thus, we hold that the plaintiffs to be entitled only to the extent of ½ share in the suit property. The decree to the remaining extent is set aside. The plaintiffs would not be entitled to refund of any consideration as by now the worth of property has increased manifold”. 29. In view of the above said discussion, this Court can come to a conclusion that Exhibit A1 sale agreement has been concurrently found to be validly executed and genuine document. The contention of the defendants 4 and 5 that Exhibit B2 sale agreement was executed on 19.10.1992 prior to Exhibit A1, suit sale agreement has been held to be not proved by both the Courts below. It is evident that Exhibit B2 has been antedated in order to defeat the rights of the plaintiff under Exhibit A1 sale agreement. Hence, the defendants 4 and 5 are not bonafide purchasers for valuable consideration without notice of the suit sale agreement. That apart, the first defendant who is a signatory to the Exhibit A1 sale agreement has not disputed the execution in Exhibit A1 in his reply notice. Though he has disputed the said suit sale agreement in the written agreement, he has not chosen to examine himself as witness in order to support his pleadings. Hence, the suit for specific performance can be decreed to the extent of the share of the first defendant in the suit. Though he has disputed the said suit sale agreement in the written agreement, he has not chosen to examine himself as witness in order to support his pleadings. Hence, the suit for specific performance can be decreed to the extent of the share of the first defendant in the suit. The First Appellate Court has rightly decreed the suit with regard to the share of the first defendant. This Court does not find any illegality or perversity in the judgment and decree of the First Appellate Court for warranting interference. 30. In view of the above said discussion, the substantial questions of law are answered as against the appellants. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.