Madras High Court
T.Rajaram vs Gangadharan on 23 June, 2021
A.S.(MD)Nos.88, 89 and 90 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)Nos.88, 89 and 90 of 2018
A.S.(MD)No.88 of 2018:-
T.Rajaram ... Appellant
Vs.
Gopal @ Gopi (Died)
1.Gangadharan
Sangiliammal (Died)
2.Jaya
3.Susila
4.Lalitha
Padma (Died)
5.Ayyammal
6.Subbiah
7.Minor.Ashok
8.Minor.Malavika ... Respondents
(Minor respondents 7 and 8 are represented
through their father and guardian/6th respondent)
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code read with
Order 41 and 41-A of Civil Procedure Coade, against the judgment and decree
in O.S.No.59 of 2008 dated 18.08.2016 on the file of the learned VI Additional
District Court, Madurai.
https://www.mhc.tn.gov.in/judis/
A.S.(MD)Nos.88, 89 and 90 of 2018
For Appellant : Mr.K.K.Ramakrishnan
For Mr.J.Anandkumar
For Respondents : Mrs.Jessi Jeeva Priya
A.S.(MD)No.89 of 2018:-
T.Rajaram ... Appellant
Vs.
Padma (Died)
1.P.Subbiah
2.Minor.Ashok
3.Minor.Malavika
(Minor respondents 2 and 3 are represented
through their father and guardian/1st respondent)
Sangiliammal (Died)
4.Gangadharan
Gopal @ Gopi (Died)
5.Jaya
6.Susila
7.Lalitha
8.Ayyammal ... Respondents
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code read with
Order 41 and 41-A of Civil Procedure Coade, against the judgment and decree
in O.S.No.174 of 2008 dated 18.08.2016 on the file of the learned VI
Additional District Court, Madurai.
For Appellant : Mr.K.K.Ramakrishnan
For Mr.J.Anandkumar
For Respondents : Mrs.Jessi Jeeva Priya
https://www.mhc.tn.gov.in/judis/
A.S.(MD)Nos.88, 89 and 90 of 2018
A.S.(MD)No.90 of 2018:-
T.Rajaram ... Appellant
Vs.
Padma (Died)
1.Gangadharan
2.P.Subbiah
3.Minor.Ashok
4.Minor.Malavika
(Minor respondents 3 and 4 are represented
through their father and guardian/2nd respondent)
Gopal @ Gopi (Died)
5.Jaya
6.Susila
7.Lalitha
8.Ayyammal ... Respondents
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code read with
Order 41 and 41-A of Civil Procedure Coade, against the judgment and decree
in O.S.No.165 of 2008 dated 18.08.2016 on the file of the learned VI
Additional District Court, Madurai.
For Appellant : Mr.K.K.Ramakrishnan
For Mr.J.Anandkumar
For Respondents : Mrs.Jessi Jeeva Priya
https://www.mhc.tn.gov.in/judis/
A.S.(MD)Nos.88, 89 and 90 of 2018
COMMON JUDGEMENT
These three appeals are directed against the judgments and decrees
passed by the learned VI Additional District Judge, Madurai on 18.08.2016 in
O.S.Nos.59, 165 and 174 of 2008. O.S.No.59 of 2008 was filed by the
appellant/Rajaram seeking the relief of specific performance. O.S.No.165 of
2008 was filed by Padma seeking the relief of partition in respect of the suit
property. O.S.No.174 of 2008 was also filed by the said Padma seeking the
relief of permanent injunction. To understand the facts of the case better, the
family genealogical tree is set out herein:-
Ponnusamy Ambalam
Velli Raj @ Raju Ambalam
Periyakaruppan Ambalam
Sangli Jeya Susila Lalitha Ayyammal Padma Gopal @ Gopi Gangatharan
Ammal
Subbiah Minor Asok Minor Malavika
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A.S.(MD)Nos.88, 89 and 90 of 2018
2.The case of the appellant/Rajaram is that in respect of the suit property,
a sale agreement dated 14.12.2005 was executed in his favour. The suit
schedule comprises two items. The first item belonged to Raju Ambalam while
the second item belonged to his son namely., Gopal @ Gopi. Raju Ambalam
and Gopal @ Gopi had agreed to sell the suit property at the rate of 6,500/- per
cent. They had also received a sum of Rs.4,00,000/- from the appellant on the
date of sale agreement. Subsequently on 19.12.2005, Gopal @ Gopi had
received a further sum of Rs.1,00,000/-. According to the appellant, he was
always ready and willing to perform his part of the contract by paying the
balance sale consideration but Raju Ambalam had informed him that there were
some issues to be resolved within the family and wanted the appellant to wait.
Unfortunately, Raju Ambalam fell ill and the appellant was not in a position to
compel them to conclude the sale transaction. Raju Ambalam passed away in
October, 2006. When the appellant approached Gopal @ Gopi, he told the
appellant that after obtaining the death certificate and legal heir certificate, he
would conclude the sale transaction. After waiting for a while, the appellant
issued legal notice dated 04.04.2007. Gopal @ Gopi received the same and
sent a reply dated 16.04.2007 denying the notice averments. Left with no
option, the appellant had filed O.S.No.59 of 2008 for specific performance of
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A.S.(MD)Nos.88, 89 and 90 of 2018
the sale agreement dated 14.12.2005, after receiving the balance sale
consideration of Rs.14,43,500/- from him.
3.Gopal @ Gopi received the suit summons but did not enter appearance.
He was set ex-parte. The seventh defendant/Padma one of the daughters of
Raju Ambalam filed written statement opposing the suit claim. It was adopted
by the other defendants. Subsequently the said Padma also passed away and
her legal representatives were brought on record. The very same Padma filed
the other two suits seeking the relief of partition and permanent injunction.
O.S.No.165 of 2008 filed by Padma for the relief of partition included not only
the items that were the subject matter of the sale agreement dated 14.12.2005
but also the other properties of Raju Ambalam. Since there was a broad
overlap between the three suits, they were taken up together and tried.
4.Rajaram examined himself as P.W.1 and three others as P.W.2, P.W.3
and P.W.4 and Exs.A1 to A9 were marked. On the side of the defendants, one
Jeya another daughter of Raju Ambalam examined herself as D.W.1 and Exs.B1
to B34 were marked.
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A.S.(MD)Nos.88, 89 and 90 of 2018
5.After a consideration of the evidence on record, the learned trial judge
partly allowed O.S.No.59 of 2008. While holding that the appellant/Rajaram
was not entitled to the relief of specific performance, the advance amount of
Rs.5,00,000/- was directed to be returned with interest at the rate of 6% per
annum with effect from 01.01.2006. O.S.No.165 of 2008 was decreed.
Preliminary decree was granted in O.S.No.174 of 2008 also. Challenging the
same, these appeals have been filed. A.S.(MD)No.88 of 2018 is directed
against the judgment and decree passed in O.S.No.59 of 2008, A.S.(MD)No.89
of 2018 is directed against the judgment and decree passed in O.S.No.174 of
2008 and A.S.(MD)No.90 of 2018 is directed against the judgment and decree
passed in O.S.No.165 of 2008.
6.The point for determination arising in A.S.(MD)No.88 of 2008 are as
follows:-
“(a) Whether the plaintiff/appellant was ready and willing
to perform his part of the contract right from the inception?
(b) Whether suit item No.1 was the exclusive property of
Raju Ambalam and whether suit item No.2 was the exclusive
property of Gopal @ Gopi? and
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A.S.(MD)Nos.88, 89 and 90 of 2018
(c) Even if the properties are joint family properties,
whether the appellant/plaintiff is entitled to specific performance
insofar the share of Gopal @ Gopi is concerned?”
7.Heard the learned counsel on either side.
8.The learned counsel for the appellant filed his written arguments.
According to him, suit item No.1 was the exclusive property of Raju Ambalam
and suit item No.2 was the exclusive property of Gopal @ Gopi. Therefore,
Raju Ambalam and Gopal @ Gopi were entitled to deal with them as their
absolute properties. Jeya who was examined on the side of the defendants was
absolutely incompetent to depose as regards the character of the properties.
Jeya's husband namely., Agni Ambalam had attested Ex.A1/sale agreement.
The learned counsel for the appellant relied on the following decisions:-
“(i) Commissioner of Wealth Tax, Kanpur and Others vs. Chander Sen
and Others reported in (1986) 3 SCC 567
(ii) Yudhishter vs. Ashok Kumar reported in (1987) 1 SCC 204
(iii) D.S. Lakshmaiah and Ors. vs. L. Balasubramanyam and Ors.
reported in (2003) 10 SCC 310
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A.S.(MD)Nos.88, 89 and 90 of 2018
(iv) Bhagwat Sharan (Dead) thr. L.Rs. vs. Purushottam and Ors. reported
in (2020) 6 SCC 387
(v) P.Govindaswamy and another vs. S.Narayanan and others reported in
1987 (Supp) SCC 58
(vi) F.C.I. vs. Yadav Engineer & Contractor reported in 1982 (2) SCC 499
(vii) See Mademsetty Satyanarayana vs. G. Yelloji Rao and others
reported in AIR 1965 Supreme Court 1405
(viii) Sirdar K.B. Ramachandra Raj Urs. (Dead) through L.Rs. vs. Sarah
C. Urs. and Ors. Reported (2019) 10 SCC 343 and
(ix) Kammana Sambamurthy (D) by Lrs. vs. Kalipatnapu Atchutamma
(D) and Ors reported (2011) 11 SCC 153”
9.The learned counsel for the appellant faulted the finding of the trial
court as regards the readiness and willingness of the plaintiff. In the plaint, it
had been specifically pleaded that the appellant had called upon Raju Ambalam
even during his life time to come forward to complete the sale transaction. It
was Raju Ambalam who told the appellant that due to some family problems,
they were unable to execute the sale deed. The version projected by the
plaintiff could have been rebutted only by Gopal @ Gopi. Gopal @ Gopi did
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A.S.(MD)Nos.88, 89 and 90 of 2018
not enter appearance. No written statement was filed by him. He was set
ex-parte. Therefore, it is not open to the surviving defendants to contest the
claim of the plaintiff that he was always ready and willing to perform his part
of the contract. He would also point out that when the suit for specific
performance was filed within the period of limitation, delay cannot be put
against the plaintiff. The plaintiff was no doubt called upon to deposit the
balance sale consideration by the trial court, when he applied for the relief of
interim injunction. Since the plaintiff genuinely believed that some of the
parties were acting in tandem with each other so as to defeat his rights, he did
not deposit the amount. It was a bonefide reaction. The failure to comply with
the condition set out in the interim order ought not to be put against the
plaintiff at the time of final disposal. The learned counsel would allege that the
partition suit was engineered to defeat the legitimate rights of the plaintiff
under the sale agreement. The learned counsel for the appellant would also
contend that the subject matter of sale agreement was not available for being
partitioned. He also alternatively submitted that in the event of this Court not
agreeing with him, decree ought to be granted atleast in respect of the share of
Gopal @ Gopi. The appellant is ready to relinquish his claim in respect of the
remaining portion. Such a relinquishment can be made even orally and there is
no necessity that it should be specifically pleaded. In this regard, he placed
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A.S.(MD)Nos.88, 89 and 90 of 2018
reliance on the decision of the Supreme Court reported in (2020) 6 SCC 387
(Bhagwat Sharan (Dead through legal representatives) v.
Purushottam and Others.
10.Per contra, the learned counsel for the respondents submitted that the
impugned judgment passed by the trial court is well reasoned and that it does
not call for interference.
11.I carefully considered the rival contentions and went through the
evidence on record. There is no doubt that Ex.A1/sale agreement dated
14.12.2005 was executed by Raju Ambalam and his son Gopal @ Gopi. There
is also no doubt that a sum of Rs.4,00,000/- was paid by the appellant on the
date of agreement and a further sum of Rs.1,00,000/- subsequently. The court
below has given a categorical finding that Ex.A1 was validly entered into. The
first question that calls for my consideration is whether the appellant had
established his “readiness and willingness” as required by Section 16 of the
Specific Relief Act, 1963. The appellant must aver and prove that he was
always ready and willing to perform the essential terms of contract, which were
to be performed by him. The suit agreement envisages that the transaction was
to be concluded within a period of four months. The said period expired on
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A.S.(MD)Nos.88, 89 and 90 of 2018
14.04.2006. Raju Ambalam died on 06.10.2006. The appellant issued
Ex.A4/notice calling upon Gopal @ Gopi to come forward for executing the
sale deed. In Ex.A4/notice, the appellant had clearly mentioned that even
though he was ready to pay the balance sale consideration and get the sale deed
registered at his expense, Gopal @ Gopi was dragging on the matter. The
notice called upon Gopal @ Gopi to obtain the death certificate and legal heir
certificate and intimate the appellant. If Gopal @ Gopi failed to do so, it was
made clear that action for securing specific performance of the agreement
would be taken. After receiving the notice, Gopal @ Gopi gave his reply dated
16.04.2007 (Ex.A5). A reading of Ex.A5 would show that Gopal @ Gopi went
to the extent of denying all the notice averments. In other words, Gopal @
Gopi had categorically declined to execute the sale deed. In the face of such a
refusal, the appellant ought to have filed the suit immediately. The appellant
did not do so. In the meanwhile, Padma had filed her injunction suit on
13.07.2007 itself. The appellant also filed his written statement in the
injunction suit on 02.01.2008. Padma issued notice on 11.01.2008 seeking
partition. Three months thereafter on 28.04.2008, the appellant herein filed
O.S.No.59 of 2008, seeking the relief of specific performance. It is true that
the suit for specific performance was filed in time. But filing the suit within
limitation period is one thing, being entitled to the discretionary and equitable
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A.S.(MD)Nos.88, 89 and 90 of 2018
relief of specific performance is entirely another. Section 16 of Specific Relief
Act, 1963 expects the agreement holder to be always ready and willing to
perform his part of the contract. In this case, the delay of a full one year after
receiving Ex.A5/reply dated 16.04.2007 from Gopal @ Gopi goes against the
appellant's claim of having been ever ready and willing. But it is not the only
circumstance. After filing the suit, the appellant filed I.A.No.185 of 2008
seeking temporary injunction. While granting the same, the trial court directed
the appellant to deposit the balance sale consideration. The appellant did not
do so. Even though the appellant failed to comply with the condition stipulated
by the trial court, I.A.No.185 of 2008, filed by the appellant came to be
allowed. Challenging the same, the defendants filed C.M.A.(MD)No.1283 of
2015 before this Court. Before this Court it was conceded that I.A.No.185 of
2008 came to be allowed by overlooking the failure on the part of the plaintiff
to deposit the balance sale consideration. Therefore, the order passed by the
trial court was set aside and I.A.No.185 of 2008 filed by the appellant was
dismissed and a direction was given for disposal of the suit itself. These two
circumstances are totally fatal to the case of the plaintiff. I went through the
plaint to see if any explanation has been given as to why the suit was not filed
immediately after receipt of the reply dated 16.04.2007. The plaint is
conspicuously silent on this. The delay of one year in filing the suit even after
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A.S.(MD)Nos.88, 89 and 90 of 2018
knowing that the executant of Ex.A1 had declined to come forward to conclude
the sale transaction and the failure to comply with the direction of the trial
court to deposit the balance sale consideration are good enough grounds for
denying the relief of specific performance. In this view of the matter, it is
unnecessary for me to consider the other questions of law on which the learned
counsel for the appellant argued at considerable length.
12.Now the question is whether the decrees and judgments should be
affirmed as such. I am clearly of the view that after taking a sum of Rs.
5,00,000/- from the appellant way back in the year 2005, the executants
namely., Raju Ambalam and Gopal @ Gopi without any justification delayed
the execution of the sale deed. I have non-suited the appellant only in view of
his failure to file the suit immediately after receipt the reply notice dated
16.04.2007. Awarding only 6% interest to the appellant appears to be grossly
unfair. Therefore, even while sustaining the judgment and decree passed by the
trial court in denying the relief of specific performance, I direct the respondents
to return the advance amount of Rs.5,00,000/- to Rajaram with interest at the
rate of 18% per annum with effect from 01.01.2006. The learned counsel for
the respondents would state that the direction to refund the advance amount
with interest as decreed by the trial court has been complied with. Of course,
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A.S.(MD)Nos.88, 89 and 90 of 2018
the additional amount will have to be paid in view of this decree now passed by
this Court. The judgment and decree passed by the trial Court in O.S.No.59 of
2008 is accordingly modified.
13.A.S.(MD)No.88 of 2018 is partly allowed and A.S.(MD)Nos.89 and
90 of 2018 are dismissed. No costs.
23.06.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
The VI Additional District Court,
Madurai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)Nos.88, 89 and 90 of 2018
G.R.SWAMINATHAN, J.
ias
A.S.(MD)Nos.88, 89 and 90 of 2018
23.06.2021
https://www.mhc.tn.gov.in/judis/
