Madras High Court
Robinson vs Arunadas(Died) on 5 October, 2021
S.A..No.2082 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 03.12.2021
JUDGMENT PRONOUNDED ON : 21.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.2082 of 2001
and CMP.No.21685 of 2001
1.Robinson
2.Isabella ...Appellants/Respondents 4 & 5
/Defendants 4 and 5
Vs
1.Arunadas(died) ..Respondent/Appellant
/Plaintiff
2.Kamaraj ..Respondent/1st Respondent
/1st Defendant
3.Mallika ..Respondent/2nd Respondent
/2nd Defendant
4.Venkateswaran ..Respondent/3rd Respondent
/3rd Defendant
5.Licy
6.Bibin Chandra
7.Biran Chandra
8.Bini Chandra ..Proposed Respondents
1/28
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S.A..No.2082 of 2001
(Respondents 5 to 8 are brought on record as legal
heirs of the deceased first respondent vide order dated
05.10.2021)
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the decree and judgment dated 27.02.2001
passed in A.S.No.8 of 1999 on the file of the
Additional District Court, Kanyakumari District at
Nagercoil reversing the decree and judgment dated
22.09.1995 passed in O.S.No.53 of 1993 on the file of
the Sub Curt, Kuzhithurai.
For Appellants : Mr.D.Rajagopal
Advocate
For R2 & R3 : No appearance
For R5 to R8 :Mr.G.Ramanathan
Advocate
For Mr.K.Sree Kumaran Nair
JUDGMENT
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,
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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.
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S.A..No.2082 of 2001
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
bonafide 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
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S.A..No.2082 of 2001
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 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
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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:
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S.A..No.2082 of 2001
“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. 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.
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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
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S.A..No.2082 of 2001
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 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
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S.A..No.2082 of 2001
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.
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S.A..No.2082 of 2001
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 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
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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. 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 5
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S.A..No.2082 of 2001
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.
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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,
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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”
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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
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S.A..No.2082 of 2001
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. 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
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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. He relied upon Paragraph Nos.24
and 25 of the said judgment which read as follows:
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“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
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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. 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.
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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.
21.01.2022.
Index : Yes / No
Internet : Yes / No
msa
To
1.The Additional District Judge
Kanyakumari at Nagercoil
2.The Subordinate Judge
Kuzhithurai
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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S.A..No.2082 of 2001
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.No.2082 of 2001
and CMP.No.21685 of 2001
21.01.2022
https://www.mhc.tn.gov.in/judis
