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2024 DIGILAW 426 (MAD)

P. Ramachandra Raju v. M. Dhananjaya Raju

2024-03-01

P.B.BALAJI

body2024
JUDGMENT : P.B. Balaji, J. [COMMON PRAYER: Second Appeals filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree in A.S. No.45 of 2012 & 32 of 2013 on the file of the 1st Additional District Court, Tiruvallur dated 04.07.2017 confirming the judgment and decree of the trial Court in O.S. No.9 of 2010 on the file of the Subordinate Court, Tirutani dated 04.11.2011 & O.S. No.43 of 2009 on the file of the District Munsif Court, Tirutani dated 31.10.2012.] The defendants 2 to 4, in a suit for specific performance, are the appellants in Second Appeal 875 of 2017. They are also the appellants in S.A. 876 of 2017, having been unsuccessful in their suit seeking a relief of permanent injunction. 2. The parties are described as per their litigative status before the trial Court. 3. The common facts that are material for adjudication in the above Second Appeals are as hereunder:- 3.1. The plaintiff in O.S. No. 9 of 2010 sought for specific performance of an agreement of sale dated 20.09.2006. According to the plaintiff, the first defendant offered to sell the suit property for a total sale consideration of Rs.3,39,000/- and a sum of Rs.59,000/- was paid as advance and Rs.2,80,000/- was to be paid as balance sale consideration. The agreement was to be concluded within a period of three months. Pleading that the plaintiff was always ready and willing to perform his part of the contract and also that the plaintiff was put in possession pursuant to the sale agreement and the first defendant having promised to bring the defendants 2 to 4 for execution of the sale deed in his favour and not adhering to any of his promises, constrained the plaintiff to issue a lawyer's notice on 03.02.2007, to which a reply notice was sent on 08.02.2007, with false and untenable allegations, going to the extent of even denying the sale agreement itself. 3.2. It is the further case of the plaintiff that the first defendant colluded with defendants 2 to 4 and made them issue a notice dated 11.03.2007, seeking partition of the suit property, being joint family property. Noticing that the defendants were trying to wriggle out of the contract and trying to disturb the plaintiff’s possession, the suit was instituted for the relief of specific performance. Noticing that the defendants were trying to wriggle out of the contract and trying to disturb the plaintiff’s possession, the suit was instituted for the relief of specific performance. However, despite claiming that the plaintiff was put in possession, by way of an abundant caution the plaintiff also sought for recovery of possession and relief of permanent injunction. 4. The first defendant filed a written statement stating that he was not the manager of the family and that he did not take the consent of defendants 2 to 4 before entering into the sale agreement and further contended that the plaintiff had earlier entered into an agreement for sale on 14.09.2005, promising to complete the transaction within three months and he did not keep his word and in terms of the earlier agreement, the advance amount of Rs.59,000/- paid was to be forfeited. However, there was a mediation and a fresh agreement was entered into on 20.09.2006, with the first defendant alone. The first defendant has further stated that the agreement was time barred and unenforceable and also possession was never handed over to the plaintiff as claimed in the plaint. 5. Defendants 2 to 4 filed a written statement stating that the first defendant had no authority to represent them as Manager and the earlier sale agreement dated 14.09.2005 was executed for a sale consideration of Rs.3,39,000/- and the plaintiff never came forward to pay the balance sale consideration, though having paid advance amount in instalments and subsequently, allowed the agreement to lapse. According to these defendants, the first defendant was neither the Manager nor the Kartha and the agreement dated 20.09.2006 also states that the first defendant has executed it only for purpose of clearing his debts and therefore, the same would not bind these defendants. According to these defendants, they never received the pre-suit notice dated 03.02.2007 and only on coming to know of the mischief done by the first defendant, the notice for partition has been issued on 11.03.2007. These defendants also pray for dismissal of the suit. 6. The trial Court dismissed the suit for permanent injunction filed by defendants 2 to 4 holding that they have not proved their possession by satisfactory, oral and documentary evidence. These defendants also pray for dismissal of the suit. 6. The trial Court dismissed the suit for permanent injunction filed by defendants 2 to 4 holding that they have not proved their possession by satisfactory, oral and documentary evidence. Also, the trial Court decreed the suit for specific performance holding that Ex.A1, sale agreement was binding on defendants 2 to 4 and the plaintiff had filed the suit within the limitation period of three years. 7. The defendants 2 to 4 preferred an Appeal in A.S. No. 45 of 2012, as against the decree for specific performance and the defendants 2 to 4 filed A.S. No.32 of 2013 as against the dismissal of the injunction suit filed by them. The First Appellate Court confirmed the judgment and decree in the specific performance suit and also dismissed the Appeal that had been filed as against the dismissal of the suit for permanent injunction. 8. I have heard Mr. C. Jagadish, learned counsel for the appellants in both these Appeals and Mr. M.S. Subramaninam, learned counsel for the contesting respondents/plaintiffs. 9. The learned counsel for the appellants, Mr. C. Jagadish would contend that though the first defendant was the eldest son, he could not bind defendants 2 to 4. He would take me through the sale agreement covenants where there is absolutely no reference to defendants 2 to 4 and would only indicate that the agreement was entered into by the first defendant in his individual capacity and not as Kartha or Manager of the joint family. He would also refer to the specific reason for the sale of the suit property as mentioned in the sale agreement dated 20.09.2006 viz., for the purposes of clearing the debts of the first defendant. Regarding the suit for injunction, he would state that though the Courts have held that the defendants have failed to prove their possession, being admittedly true owners of the property and the plaintiff having failed to establish that he was put in possession pursuant to the agreement of sale, the Courts below have erred in dismissing the suit for permanent injunction. 10. The learned counsel for the appellants would place reliance on the following decisions (1) A. Abdul Rashid Khan (Dead) and others Vs. P.A.K.A. Shahul Hamid and others reported in (2000) 10 SCC 636 , (2) M. Arumugam Vs. 10. The learned counsel for the appellants would place reliance on the following decisions (1) A. Abdul Rashid Khan (Dead) and others Vs. P.A.K.A. Shahul Hamid and others reported in (2000) 10 SCC 636 , (2) M. Arumugam Vs. Ammaniammal and others reported (2020) 11 SCC 103 and (3) A.K. Narayanan Vs. A.K. Purushothama Chettiar and others reported in 2010 (3) MWN (Civil) 673. 11. Per contra, Mr. M.S. Subramaniam, learned counsel for the respondents would state that the plaintiffs and defendants are relatives and therefore, keeping this in mind, the conduct of the parties would have to be assessed by the Courts. He would also contend that merely because the defendants were living separately and not under one roof, it would not amount to disruption of the joint family status. He would also refer to the notice issued for partition to state that the defendants 2 to 4 themselves have admitted that the first defendant was managing the joint family affairs. Thus he would state that as a Kartha, the first defendant can dispose of the property of the joint family when the sale was for family necessity. He would also invite my attention to the sale agreement covenants that it was only mentioned that the sale was only in order to discharge debts. That apart, the learned counsel would also state that the second defendant did not enter the witness box to deny the specific allegation in the plaint that he demanded through telephone, on 06.02.2007, a sum of Rs.2,00,000/- in excess of the agreed sale agreement and therefore, would persuade this Courts to draw adverse inference against the defendants 2 to 4 and confirm the decree for specific performance. 12. As an alternate submission, the learned counsel for the respondents would place reliance on the Full Bench decision of this Court in Baluswami Aiyar Vs. Lakshmana Aiyar and others reported in 1921 SCC Online Mad 43, for the proposition that a managing member of a joint Hindu family who enters into a contract for a sale of joint family lands, on being found that the contract would not bind the other coparceners, the purchaser would still be entitled to specific performance as against the share of the manager alone, subject to payment of full consideration agreed for the whole property. 13. 13. Both the Second Appeals have been admitted by this Court on 13.12.2022, on the following substantial questions of law:- “(1) Whether an agreement of Sale executed by the 1st defendant, would bind the non-signatories to the agreement namely, the 2nd, 3rd and 4th defendants and particularly in the teeth of Section 12 (2) and Section 12(3) of the Specific Relief Act? (2) Whether the statement in the agreement by the 1st defendant that he would bring all the other co-owners to execute the sale deed before the Sub Registrar Office can be taken to be a binding statement, binding the other defendants in the suit? (3) Whether the claim of the plaintiffs that the 1st defendant had entered into an agreement as the Kartha of the family can be taken as a correct statement and was correctly appreciated by the Courts below? (4) Whether the Courts below have properly appreciated the issue of possession and had correctly dismissed O.S. No.43 of 2009 when in O.S. No.42 of 2007, the plaintiffs, has also sought in the relief of recovery of possession though out of abundant caution?” 14. I have carefully considered the rival submissions advanced by the learned counsel on either side. 15. Admittedly, the plaintiff in O.S. No.42 of 2007, had entered to an agreement of sale with the first defendant on 14.09.2005. In the said agreement, it has been mentioned that the suit property is being sold only for the debts of the first defendant. The entire agreement is totally silent about either the existence of the joint family or the right of the defendants 2 to 4 in the suit property. Subsequently, the suit sale agreement had been entered into (Exhibit A1), on 20.09.2006. Even the said agreement has been executed only by the first defendant and not by defendants 2 to 4. However, in the said agreement, the first defendant has agreed to secure the attendance of the parties concerned at the time of the registration of the sale deed. Even Ex.A1 does not disclose the existence of the joint family or the fact that first defendant was the Kartha or Manager of the joint family. Moreso, it does not even disclose the names of defendants 2 to 4 and merely refers to undisclosed persons. 16. Admittedly, it has come out in evidence that the first defendant was only one of the sharers. Moreso, it does not even disclose the names of defendants 2 to 4 and merely refers to undisclosed persons. 16. Admittedly, it has come out in evidence that the first defendant was only one of the sharers. It is to be however seen whether he was in fact, the Kartha or Manager of the joint family and had authority to enter into an agreement of sale, on behalf of the joint family and bind the other coparceners. As rightly, contended by the learned counsel for the appellants, absolutely there is no whisper in both the agreements dated 14.09.2005 as well as 20.09.2006 that the property was a joint family property and that the agreements were entered into by the first defendant as the Manager/Kartha of the joint family property. If the plaintiff is able to succeed in establishing that the suit agreement was entered into only as Kartha of the joint family, then as rightly contended by the learned counsel for the respondents, the sale agreement would bind the appellants as well. 17. No doubt, in the notice issued for partition, the appellants have stated that the first defendant has been managing all the joint family affairs. The said notice, according to Mr. M.S. Subramaniam, learned counsel for the respondents is an admission that the suit property is only joint family property and being the eldest son, the first defendant was managing the joint family affairs. This solitary statement in notice for partition, however, cannot be read as an admission of the fact that the first defendant was the Kartha of the joint family and therefore, he, by his actions could bind the defendants 2 to 4, the other members of the joint family. Even in the suit sale agreement, the first defendant has stated that, if required by the plaintiff, he would ensure that the other interested parties would also join the sale deed at the time of executing and registering the same in favour of the plaintiff. This covenant in the suit sale agreement, coupled with the fact that the agreement does not even mention that the suit property to be a joint family property and is represented by the Kartha/Manager, clearly goes to show that the first defendant did not enter into the suit sale agreement as the Kartha/Manager of the joint family. Consequently, his actions cannot bind defendants 2 to 4 viz., the appellants herein. 18. Consequently, his actions cannot bind defendants 2 to 4 viz., the appellants herein. 18. The ratio laid down by the Hon’ble Supreme Court in A.Abdul Rashid Khan’s case, referred herein supra would apply to the facts of the present case. In Arumugam’s case, referred herein supra, however, the Supreme Court was dealing with a case whether the guardian of a minor in respect of undivided interest in joint family property could deal with the said share. The said case may not apply to the facts of the present case. In A.K. Narayan’s case, referred herein supra, this Court held that if the suit property was a joint family property and the defendant not being a single owner, he had acted beyond legal bounds in executing an agreement of sale for the entire property. 19. From the above discussions, it is clear in my mind that both the Courts have failed to appreciate the legal position in a proper perspective and they have decreed the suit for specific performance and also dismissed the suit for permanent injunction filed at the instance of the true owners as against an agreement holder, who cannot claim any vested right or interest in the suit property. Further, admittedly, despite specifically pleading that the plaintiff was put in possession of the suit property, he has not been able to establish the said factum at trial. In fact, he himself has prayed for the relief of possession by way of abundant caution which also gives rise to a strong presumption that the plaintiff was never put in possession in the first place. 20. However, I am able to see merit in the contentions putforth by the learned counsel Mr. M.S. Subramainam, placing reliance on the Full Bench decision, viz., Baluswamy Aiyar’s case, referred herein supra. Section 12 of the Specific Relief Act, 1963, in my considered opinion would apply to the present case and the same is extracted hereunder for easy reference : “12. Specific performance of part of contract.— (1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract. Section 12 of the Specific Relief Act, 1963, in my considered opinion would apply to the present case and the same is extracted hereunder for easy reference : “12. Specific performance of part of contract.— (1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) 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 either— (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) 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 other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party— (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), pays or had paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. Explanation.—For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance.” 21. Thus, from a careful reading of Section 12 of Specific Relief Act, 1963, especially sub section 3, it is clear that the plaintiff is entitled to seek specific performance as against the defaulting party i.e., the first defendant herein in respect of a part of the contract, which he is legally permissible to deal with, viz., 1/4th undivided share in the present case. Applying Section 12(3)(b)(ii) of the Specific Relief Act, the plaintiff is entitled to seek part performance of the contract, restricted to the first defendant share alone, subject to the plaintiff paying the consideration for the whole of the contract, without any abatement and also subject to the plaintiff relinquishing all his claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss of damage sustained by him because of the default committed by the first defendant. 22. In the present case admittedly, the first defendant cannot compel the other members of the joint family to sell their respective shares to the plaintiff. However, it is to be seen whether a part of the contract, atleast insofar as it is relating to his share alone can be specifically performed. The Hon’ble Full Bench of this Court in Baluswamy Ayyar’s case, referring old Section 15 under the 1877 Specific Relief Act, which is now Section 12 of the 1963 Act, held that when the contract was not binding on the other members of the family and there was no cause of action against them, still, the plaintiff would be entitled to specific performance against the person who agreed to sell the property. The Hon’ble Full Bench held that if the purchaser was willing to take it, then specific performance can be granted insofar as the share of the vendor alone. However, the Full Bench spelt out a rider that the plaintiff would have to elect to take such share on payment of full consideration agreed upon under the contract, without any abatement. 23. Section 12 of the Specific Relief Act, 1963 actually speaks about unenforceability of a part of a contract by way of specific performance. However, as seen from the Section extracted herein above, exceptions are set out under sub sections 2 to 4. Even in A.Abdul Rashid’s case, referred herein supra, the Hon’ble Supreme Court held that the right of the vendee can be limited to the share in the property that would be the share of the vendor in the agreement of sale and the decree in a suit for specific performance cannot be extended to possession. 24. In my considered opinion sub section 3 entitles the plaintiff to a decree, restricted to the first defendant’s share alone and as laid down by the Hon'ble Full Bench, subject to not seeking any reduction in the sale consideration set out in the sale agreement. In this view of the matter, I am allowing the Second Appeal insofar as the suit for specific performance, in part. There shall be a decree for specific performance, as against the share of the first defendant’s 1/4th share alone subject to ofcourse, the plaintiff electing to take the said 1/4th share for the whole of the consideration under the agreement of sale, with the first defendant and also relinquishing his claims as set out in Section 12(3) (b) (ii) of the Specific Relief Act, 1963. 25. Insofar as the suit for permanent injunction, admittedly the plaintiff/agreement holder has failed to prove that he was put in possession of the suit property in pursuance of the sale agreement and the Courts below ought not to have dismissed the suit for permanent injunction filed by the true owners, that too as against the agreement holder from one of the owners alone. 26. 26. In fine, I am answering the substantial questions of law in favour of the appellants and the Second Appeals are allowed in the manner following : (i) S.A. No.875 of 2017, is partly allowed subject to the following conditions:- (a) If the plaintiff elects to take the said 1/4th undivided share of the first defendant alone and relinquishes all his claims for performance of the remaining 3/4th undivided share of the suit property, besides also relinquishes all his right to compensation as against the defendants, by filing an affidavit to this effect, within two weeks from today, then there shall be a decree for specific performance of a part of the agreement of sale viz., 1/4th undivided share of the first defendant alone and the plaintiff shall pay/deposit the balance sale consideration of Rs.2,80,000/- within eight weeks from the date of the receipt of the copy of this judgment. (b) On such deposit, in the event of the first defendant not coming forward to execute the sale deed in respect of his 1/4th undivided share, then the plaintiff is entitled to execute this decree in accordance with law. However, it is made clear that this decree would not entitle the plaintiff to seek possession of the suit property and consequent upon obtaining a sale deed in respect of the first defendant's 1/4th undivided share either directly from the first defendant or through Court process, then it would be open to the plaintiff to seek for partition and separate possession of his 1/4th share as against the other defendants. (ii) The S.A. 876 of 2017 is allowed and the Judgment and decree of the Courts below are set aside and there shall be a decree for permanent injunction as prayed for by the appellants, as plaintiffs in O.S. No.43 of 2009; (iii) It is also made clear that the plaintiff in O.S. No.9 of 2010, shall be entitled to a decree only for specific performance of the first defendant ‘s 1/4th undivided share in the suit property and thereafter, he would have to workout his rights for seeking separate possession by filing a suit for partition against the appellant/defendants 2 to 4, in accordance with law. Consequently, connected Miscellaneous Petition is closed. No costs.