Madras High Court
V.R.Natesan vs Sundarammal on 26 April, 2022
SA NO.478 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.478 OF 2017
AND CMP NO.11755 OF 2017
V.R.Natesan ... Appellant
VS.
1.Sundarammal
2.Pappathy
3.Susheela ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree dated 16.03.2017 in
A.S.No.50 of 2015 on the file of the learned Principal District Judge,
Coimbatore, reversing the judgment and decree dated 03.10.2012 in
O.S.No.739 of 2009 on the file of learned I Additional Subordinate Judge,
Coimbatore.
For Appellant : Ms.AL.Ganthimathi
For Respondents : Mr.B.Harikrishnan
1/16
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SA NO.478 OF 2017
JUDGMENT
Aggrieved over the reversal of the decree of specific
performance granted by the Trial Court, by the First Appellate Court, the
plaintiff has preferred the above Second Appeal.
2.For the sake of convenience, the parties are called as per
their litigative status before the Trial Court.
3.The plaintiff filed a Suit for specific performance directing
the defendants to execute a Sale Deed in his favour with regard to their
3/4th share in the Suit property after receiving the balance sale price.
Originally, the Suit property belonged to one Late Rangaiah Gounder as
his separate property. Rangaiah Gounder was survived by the defendants
and one son by name Chinnaraj. On 16.01.2007, the defendants along
with the said Chinnaraj entered into an agreement of sale with the
plaintiff and received a sum of Rs.1,00,000/- as advance on the date of
the agreement. As per the terms and conditions of the agreement, the
defendants have to produce the death and legal heirdhip certificate of the
deceased Rangaiah Gounder, along with patta, chitta and adangal and
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SA NO.478 OF 2017
that the plaintiff shall pay the balance sale price within a period of six
months and get the Sale Deed executed in his favour. The plaintiff was
ready and willing to perform his contract as per the agreement for sale.
However, the defendants have not produced the documents as promised
and have not measured the property by metes and bounds and were
postponing the performance of the contract on their part. Suppressing all
these facts, the defendants issued a telegram on 14.07.2007 calling upon
the plaintiff to pay balance sale price and get the Sale Deed from them on
or before 16.07.2007. Immediately, the plaintiff sent a reply telegram
expressing his intention to get the Sale Deed executed in his favour and
waited in the Office of the Sub Registrar with funds to comply with their
demands. After exchange of telegraphic notices, the defendants and the
said Chinnaraj promised to meet the plaintiff with all title deeds and get
the names mutated in the revenue records within a short time. Since they
did not evidence any interest to honour their commitment, the plaintiff
sent a legal notice on 19.06.2008 to the defendants to the address
mentioned in the sale agreement. But all the postal covers were returned
with an endorsement “no such addressees”. After enquiry with the local
residents, he got the new address of the defendants and sent a legal notice
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SA NO.478 OF 2017
on 30.04.2009. On receipt of the legal notice, the said Chinnaraj
voluntarily came forward and conveyed his 1/4th share in the property.
After taking measurement of the suit property, it was found that only an
extent of 3.70 acres were available for specific performance and that
Chinnaraj executed a Sale Deed on 21.09.2009 by virtue of a registered
Document No.9957/2009 conveying his 1/4th share. The defendants
issued a reply notice with unsustainable allegations. The plaintiff was
always ready and willing to perform his part of contract and the total sale
price of the land measuring an extent of 3.70 acres is Rs.5,55,000/- at the
rate of Rs.1,50,000/- per acre as per the sale agreement dated
16.01.2007. After deducting the advance amount of Rs.25,000/- that was
paid to Chinnaraj's share, the defendants are entitled to get the balance
sale price to the tune of Rs.3,41,250/- towards their 3/4th share and
execute the Sale Deed. Since the defendants evaded from performing their
part of the contract, he filed a Suit for specific performance.
4.The defendants have resisted the averments made in the
plaint by way of filing an elaborate written statement, wherein it was
stated that the plaintiff has drastically failed to perform his part of
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SA NO.478 OF 2017
contract within the time stipulated in the sale agreement and thereby, he
lost his right to claim specific performance. The agreement was expressly
rescinded by telegraphic notice of termination on 14.07.2007. The
plaintiff has not taken any action for a period of 1 ½ years and issued a
legal notice only on 30.04.2009. In the meanwhile, a Suit for partition
was filed against Chinnaraj in O.S.No.316 of 2007 on the file of the
District Munsif Court, Mettupalayam and a decree of partition was
granted by the Court and the entire property excepting the 1/4 share of
Chinnaraj was released. The defendants have not received any advance as
alleged by the plaintiff and it was received by the said Chinnaraj, who
was acted in collusion with the plaintiff. Therefore, they are not liable to
execute the Sale Deed. The plaintiff has not shown readiness and
willingness throughout the transaction and the Suit is barred by limitation
and it is vexatious one.
5.The Trial Court, after framing appropriate issues has held
that the plaintiff is entitled to decree of specific performance. On appeal,
the First Appellate Court has found that the agreement of sale is an
unregistered one and it was hit by Section 17(1-A) of the Registration
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SA NO.478 OF 2017
Act, 1908, and that the plaintiff has not shown his readiness and
willingness by proving his financial capacity and reversed the decree
granted by the Trial Court.
6.Aggrieved over the same, the plaintiff preferred the Second
Appeal and it was admitted on 26.11.2019 the following substantial
questions of law:-
"1.Whether the lower appellate court was right in
dismissing the suit, more so when the plaintiff has
shown his readiness and willingness to perform his part
of the contract and the delay if any caused was due to
the conduct of the defendants in not coming forward to
execute the sale deed ?
2.Whether the lower appellate court was right in
reversing the judgment and decree of the trial court
without assigning any reason as to why it does not agree
with the conclusions of the trial court? "
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SA NO.478 OF 2017
7.Admittedly, an unregistered agreement was entered
between the parties. Whether consensus ad-idem was there or not? was
discussed by the Courts below. Admittedly, the defendants by filing a
Suit for partition and for recovery of the advance amount received by
Chinnaraj have taken their share of Rs.75,000/- paid by the plaintiff
towards advance. Further, they have issued a telegram on 16.07.2007
rescinding the sale agreement. Therefore, it is clear that the defendants
along with Chinnaraj has entered into a sale agreement with the plaintiff
and as such, there was consensus ad-idem between the parties. Now that
a perusal of the sale agreement, marked as Ex.A1 reveal that there was a
precondition that the defendants shall produce death certificate of
Rangaiah Gounder and legal heirship certificate, patta, chitta and adangal
to the plaintiff. It is also quoted that the measurements of the property
was not actually taken. The further condition states that the sale shall be
completed within a period of six months. If the vendee fails to perform his
part of contract, the advance paid by him will be forfeited and on the
other hand, if the vendors fails to perform their part of contract, the
vendee is entitled to file a Suit for specific performance. Therefore, from
Ex.A1 it can be clearly inferred that production of the death certificate,
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SA NO.478 OF 2017
legal heirship certificate and revenue documents are the pre-requisites of
the performance of the contract. Even though in the reply notice issued by
the defendants vide Ex.A4 states that they have handed over the required
documents to the plaintiff, there is no oral evidence by the third
defendant, who deposed as D.W.1 to prove the same.
8.It is well settled that in a Suit for specific performance for
sale of immovable property, the normal presumption shall be time is not
the essence of the contract. The conduct of the parties in the present case
clearly goes to show that without fulfilling the promise, the parties cannot
insist on the time as essence of the contract.
9.In so far as the first question of law of readiness and
willingness to perform plaintiff's part of contract is concerned, it was
delayed due to the conduct of the defendants and not coming forward to
execute the sale deed is concerned, at the threshold itself, the defendants
have not produced the required documents as promised in the terms and
conditions of the sale agreement. In fact, at the time of entering into the
sale agreement, a sum of Rs.1,00,000/- was paid towards advance, which
was received by the defendants along with Chinnaraj and it was further
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SA NO.478 OF 2017
substantiated that the they are recovered their share of advance of
Rs.75,000/- by filing a Suit in O.S.No.316 of 2007. Thereafter, they have
shifted their residence. Then it was found that the property situate in
S.F.No.325 and a Part of S.F.No.324 of the said village, the sale deed
stood in the name of the father-in-law of the first defendant namely
Bujjanga Gounder and that he died intestate leaving behind the Rangaiah
Gounder and well as one Ramasamy Gounder as his sons. He wanted
proof of partition in between the brothers and the relevant documents
with respect to the common half share of the Rangaiah Gounder in the
total extent of 5.61 3/5 acres and 1.87 1/5 acres. Since it was not
forthcoming, he issued a legal notice on 30.06.2008. Therefore, there was
no reason for delay on the part of the plaintiff in issuing the legal notice
beyond the period of six months specified in the sale agreement. After
issuance of the legal notice, it was found that the defendants have shifted
their residence as evidenced by Ex.A2, the returned postal covers. The
returned postal covers clearly indicates that the covers were kept in the
custody of the postman from 20.06.2008 to 27.06.2008. On all days,
enquiry was made and it was found that "no such addressees" were
residing in that address.
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SA NO.478 OF 2017
10.The conduct of the defendants, shifting their residence
without informing the plaintiff shows the malafide intention on the part
of the defendants. Even though a denial was made in the written
statement that they have not shifted the residence, it was admitted during
oral evidence that they have actually shifted the residence and it was
borne out by Ex.A2. Once the conduct of the defendants is not above
board, it cannot be pleaded that the plaintiff has not performed his part of
contract within the time specified in the sale agreement.
11.In this case, time is not the essence of the contract.
Further for the telegram sent by the defendants on 14.07.2007 calling
upon the plaintiff to pay the balance sale consideration and get the sale
deed executed was immediately responded by the plaintiff and he waited
at the Office of the Sub-Registrar on 16.07.2007. The factum that he
waited in the Office of the Sub Registrar stood proved by Ex.A10.
Ex.A10 is the registered sale deed registered at the Office of the Sub
Registrar on 16.07.2007. A perusal of Ex.A10 reveal that the sale was
executed on 16.07.2007 and the execution was witnessed by the plaintiff.
Further, the sale deed dated 16.07.2007 which was registered on the very
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SA NO.478 OF 2017
same day in which the plaintiff has identified the executant before the
Sub Registrar. Therefore, it is very clear that the plaintiff was ready and
willing to get the sale deed executed in his favour throughout.
12.It is further substantiated by the sale deed executed by
Chinnaraj in respect of his 1/4th share in favour of the plaintiff and
payment of the balance sale consideration by the plaintiff. This shows
that the plaintiff was ready and willing throughout. But the First
Appellate Court has wrongly construed that the plaintiff was not ready
and willing and has approached the defendants only after a period of 1 ½
years and thereby committed delay. But the conduct of the parties as a
whole and the specific pleadings made in the plaint clearly prove that the
plaintiff was ready and willing to perform his part of contract and it was
delayed on account of the conduct of the defendants.
13.The learned counsel for the defendants relied on the
judgment of this Court in M.JOHNSON VS. E.PUSHPAVALLI [2016
(2) MWN (CIVIL) 628] and a Division Bench judgment of this Court in
P.SAKUNTHALA AND OTHERS VS. N.A.RAJENDRAN [2016 (6)
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SA NO.478 OF 2017
CTC 490] for the proposition that though the Suit is filed within
limitation, the enormous delay on the part of the plaintiff in initiating the
legal proceedings, in a specific performance suit, is relevant to the grant
of relief is concerned, the concept of time is the essence of the contract
and that delay will operate against the plaintiff, is not applicable to the
present case, as the conduct of the parties goes to show that the plaintiff
was always ready and willing to perform his part of contract.
14.The First Appellate Court has also reversed the well
considered judgment of the Trial Court on the ground that the sale
agreement was not a registered document. Section 17(1-A) of the
Registration Act, 1908 makes it mandatory to register the documents
containing contracts to transfer for consideration, any immovable
property for the purpose of Section 53-A of the Transfer of Property Act,
1882 with effect from 24.09.2001. Here, the sale agreement was entered
in the year 2007. But the plaintiff has not taken advantage of Section
53-A of the Transfer of Property Act, 1882, in claiming specific
performance.
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SA NO.478 OF 2017
15.Section 17(2)(v) of the Registration Act, 1908, exempts
the document, which do not create, declare, assign, limit or extinguish
any right, title or interest from being registered. But only creates a right to
obtain another document which will when executed, create, declare,
assign limit was extinguished any such right, title or interest. Therefore,
when a sale agreement, which does not claim any part of past
performance under Section 53-A of the Transfer of Property Act, 1882,
need not be registered.
16.The learned counsel for the defendants relied on a
judgment of this Court in PALANIAMMAL AND OTHERS VS. K.R.C.
ANBALAGAN AND OTHERS [2013 (3) CTC 477] which clearly spell
out that when a person seeks to reap the benefits of Section 53-A of the
Transfer of Property Act, 1882, shall have an agreement of sale relating
to any immovable property and shall register the same as per Section
17(1-A) of the Registration Act, 1908. In the instant case, the plaintiff is
not seeking the benefits of Section 53-A of the Transfer of Property Act,
1882, and therefore, the above judgment is not applicable to the case on
hand.
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17.In so far as the second question of law is concerned, the
First Appellate Court has reversed the finding of the Trial Court on
erroneous application of Section 17(1-A) of the Registration Act, 1908
read with Section 53-A of the Transfer of Property Act, 1882. The finding
that the sale agreement is not registered in view of the Amendment dated
24.09.2001 is fatal to the claim of specific performance is absolutely
erroneous, baseless and not sustainable. The substantial questions of law
are thus answered in favour of the plaintiff / appellant.
18.In the result, the judgment and decree dated 16.03.2017
passed in A.S.No.50 of 2015 by the learned Principal District Judge,
Coimbatore, reversing the judgment and decree dated 03.10.2012 passed
in O.S.No.739 of 2009 by the learned I Additional Subordinate Judge,
Coimbatore, stands set aside and the Second Appeal is allowed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
26 / 04 / 2022
Index : Yes/No
Internet : Yes/No
TK
To
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SA NO.478 OF 2017
1.The Principal District Judge
Coimbatore.
2.The I Additional Subordinate Judge
Coimbatore.
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SA NO.478 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.478 OF 2017
26 / 04 / 2022
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