Madras High Court
Thengapattanam Educational And ... vs Kose Mohumed on 26 April, 2022
A.S.(MD)No.82 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 26.04.2022
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.82 of 2019
and
C.M.P.(MD)No.4525 of 2019
Thengapattanam Educational and Service Trust,
Represented by its Managing Trustee,
A.Akbar Ali,
S/o, Alihasan,
No.22/56, Thoppuveedu,
Thengapattanam & Post,
Painkulam Village,
Vilavancode Taluk,
Kanyakumari District. Appellant/Plaintiff
Vs.
1.Kose Mohumed
2.Abdul Reguman Respondents /Defendants
PRAYER: Appeal Suit is filed under Section 96 of the Civil Procedure Code to
set aside the judgment and decree, dated 14.03.2019 passed in O.S.No.154 of
2010, on the file of the learned Principal District Judge, Kanyakumari District
at Nagercoil.
1/28
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For Appellant :Mr.M.P.Senthil
For Respondents : M/s.P.Malini
JUDGMENT
This Appeal Suit has been preferred challenging the judgment of the learned
Principal District Judge, Kanyakumari, dated 14.03.2019, made in O.S.No.154
of 2010.
2.The Appellant is the plaintiff in the suit. He has filed the suit for specific
performance on the basis of the sale agreement, dated 04.03.2010, executed by
him in favour of the first defendant herein. The case of the plaintiff is that on
04.03.2010, the first defendant entered into a sale agreement with the plaintiff,
in respect of his 53 cents of lands in Survey No.486/1, Painkulam Village,
Vilavancode Taluk, Kanyakumari District, at the rate of Rs.40,000/- per cent;
on the date of sale agreement itself, the plaintiff paid an earnest amount of Rs.
25,000/- and it was agreed between the parties that the balance sale
consideration should be paid within a period of four months; on 07.04.2010, at
the instance of the first defendant, his wife Zeenath Beevi sent a legal notice,
stating that a portion of the said property belonged to her and she had not
agreed to sell the property in favour of the plaintiff and she did not sign the
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agreement also; the plaintiff sent a reply notice to Zeenath Beevi, dated
12.05.2010; the plaintiff also sent a suit notice to the first defendant and called
upon him to execute the sale deed, in respect of 41 cents, in the said suit survey
Number, in accordance with the sale agreement, dated 04.03.2010; on receipt of
the said notice, the first defendant sent a reply notice, dated 25.10.2010 with
false and frivolous allegations; later, the plaintiff came to know that the first
defendant has got a saleable interest only in respect of 36 cents alone; hence in
the suit schedule properties, the extent of lands is shown as 36 cents; the
plaintiff is ready and willing to perform his part of contract by paying the
balance sale consideration to the first defendant; despite the plaintiff was ready
and willing to perform his part of contract, the first defendant failed to execute
the sale deed in his favour; on 16.09.2010, he executed the fraudulent sale deed
in favour of the second defendant, in order to defraud the interest of the
plaintiff; the second defendant is none other than the cousin brother of the first
defendant and he is not a bonafide purchaser for a valuable sale consideration;
the second defendant is also added as a party to the suit in order to get effective
decree for specific performance; since the first defendant failed to execute the
sale agreement as agreed by colluding with the second defendant, the plaintiff
has filed the suit for specific performance.
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3.The first defendant contested the suit by alleging that the intention for
executing the sale agreement is not true; on 30.03.2010, the plaintiff along with
some rowdy elements caught hold of the first defendant and obtained his
signatures in stamp papers and blank white papers; by making use of the signed
papers so obtained from the first defendant, the plaintiff created the sale
agreement; on 07.04.2010, the first defendant's wife sent a legal notice, because
she has an extent of 36 cents in Survey No.486/1; thereafter, the plaintiff had
sent notice to the first defendant and his wife with false and frivolous
allegations. So, the suit has to be dismissed.
4. The second defendant has stated in his written statement that he is a bonafide
purchaser of the suit property; after verifying the documents in respect of the
title of the first defendant and his wife, Zeenath Beevi, the second defendant
came to know about the sale agreement, only after the receipt of summons in
this case; on enquiry, he came to know that the plaintiff got the sale agreement
from the first defendant by force; the suit has to be dismissed.
5.On the basis of the above plea, the learned trial judge has framed the
following issues:-
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1) Is it true to say that the defendants' signature was
obtained by the plaintiff by way of coercion and undue
influence?
2) Whether the suit is bad for non-joinder of necessary
parties?
3) Whether the plaintiff was always willing and ready to
execute the sale deed?
4) Whether the plaintiff is entitled to get a decree for
specific performance of contract based on the sale
agreement deed, dated 04.03.2010.
5) To what any other relief, the plaintiff is entitled to?
6.During the course of trial, on the side of the plaintiff, three witnesses were
examined as PW.1 to PW 3 and 10 documents have been marked as Ex.A1 to
Ex.A10. On the side of the defendants, two witnesses were examined as D.W1
and D.W.2 and Ex.B1 to Ex.B4 were marked.
7.The learned trial judge after considering the evidence and documents placed
on record dismissed the suit. Aggrieved over the same, the plaintiff has
preferred this appeal suit.
8. The learned counsel appearing for the appellant submitted his arguments on
the basis of the grounds of appeal. It is submitted on behalf of the
appellant/plaintiff that despite the learned trial judge had recorded a finding
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that Ex.A1 is a genuine agreement, he denied the relief on some wrong premise,
though the plaintiff was ready and willing to perform his part of contract, the
learned trial judge did not appreciate the evidence in a proper and perspective;
the learned trial judge overlooked the conduct of the first defendant who
dodged to perform his part of contract by sending notice through his wife and
by executing the sale deed in favour of the second defendant, during the
pendency of the suit; the plaintiff has filed the suit before the expiry of the
agreed time limit of four months and that would show his readiness and
willingness to perform his part of contract; even if the first defendant did not
have title to the whole of 53 cents of lands, his title is clear with regard to the
extent of 36 cents; hence, the learned trial judge ought to have decreed the suit
for specific performance in respect of 36 cents by invoking his power under
Section 12 of Specific Relief Act; the second defendant is not a bonafide
purchaser to the suit property and that was also overlooked by the learned trial
judge; so, the appeal has to be allowed.
9. The learned counsel for the respondent submitted that the sale agreement was
obtained by coercion. The genuineness of the sale agreement was not proved.
Even for the sake of argument, the sale agreement is proved to be true, the
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appellant/ plaintiff has not proved his readiness and willingness. The appellant
has not proved his readiness and willingness; the appellant has not proved his
capacity as the Managing Trustee of the plaintiff's Trust and his locus standi to
represent the Trust by producing any document; in order to avail the benefits of
Section 12 of the Specific Relief Act, it has to be shown before the court that
the relinquishment under Section 12(3) of the Act in respect of the remaining
part of the contract is done; without such relinquishment, no decree can be
passed for the rest of the suit property; the plaintiff has not proved the passing
of the part sale consideration of Rs.25,000/- (Rupees twenty five thousand
only) as seen in Ex.A.1; so it has not been proved that the sale agreement is
supported by consideration; hence, the learned trial Judge has rightly dismissed
the suit and it does not require any interference.
10. Points for consideration:
1) Whether the appellant/plaintiff proved that he was ready
and willing to perform his part of contract?
2) Whether the plaintiff is entitled to get a decree for specific
performance, in respect of 36 cents alone, though the sale
agreement was entered for a larger extent of 53 cents?
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3) Whether the second defendant is a bonafide purchaser for
valuable consideration?
4) Whether the plaintiff is entitled to specific performance of
part of the contract?
11. The execution of the sale agreement and its terms were proved to be true
before the trial Court. Hence the learned trial judge has recorded a finding that
the sale agreement, dated 04.03.2010 (Ex.A1) is a true and valid document.
Though the defendants claimed that Ex.A.1 is not a valid document, findings
have been rendered by the learned trial judge in favour of the plaintiff, even
though the suit was dismissed. However, the respondents/defendants have not
filed any cross objection challenging the above findings. So, this Court need
not labour much to test once again whether Ex.A1 Sale Agreement is a true and
valid one.
12. At the time of the execution of sale agreement by the first defendant in
favour of the plaintiff, the wife of the first defendant was not a party to the
same. Subsequent to the execution of the sale deed, i.e, on 07.04.2010, the wife
of the first defendant sent a legal notice to the plaintiff and claimed that a
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portion of the property belonged to her. Though she claimed that Ex.A1, Sale
Agreement was obtained from her husband by force, the said contention was
not proved and hence it was not accepted by the learned trial Judge.
13. So, the limited scope of this appeal is to see whether the appellant/plaintiff
was all along ready and willing to perform his part of contract, atleast in respect
of 36 cents, for which the first defendant has title. The title of the first
defendant to the extent of 36 cents in Survey No.486/1,Painkulam Village,
Vilavancode Taluk, Kanyakumari District is asserted by the first defendant by
his own conduct of executing a sale deed for the said extent in favour of the
second defendant. In the sale deed executed by the first defendant in favour of
the second defendant, his wife was not a party. From the title deed, Ex.A8, in
favour of the wife of the first defendant, it is shown that she had purchased 12
cents in the said Survey Number and hence she is entitled to the same. Under
such circumstances, it is the right for the appellant/plaintiff to restrict his relief
for specific performance to a limited extent of 36 cents, though in the sale
agreement, an extent of 53 cents is shown.
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14. The appellant/plaintiff has entered into a sale agreement in his capacity as
the Managing Trustee of the Trust. The learned trial judge has observed that
the plaintiff did not prove his bonafideness to act on behalf of the Trust in his
alleged capacity as Managing Trustee. The fact remains that the defendants
themselves did not object his capacity as Managing Director of the Trust. Even
if there is any issues about his capacity to represent the Trust, the same can be
questioned by the other trustees of the Trust or any other person, who is
interested in the affairs of the Trust. In the case in hand such issues did not
arise. Even if the appellant suffers any incapability in entering into the contract
or represent himself on behalf of the Trust, it may not be possible for him to get
the sale deed registered without producing any documents before the Sub
Registrar. So it is open to the appellant to prove his capacity that he is the
Managing Trustee of the plaintiff's Trust and he is entitled to get the sale deed
in the said capacity.
15. It is the categorical submission of the learned appellant/plaintiff that he is
always ready and willing to perform his part of contract by paying the balance
sale consideration. Since the sale agreement is proved to be true, the payment
of Rs.25,000/- as seen in the sale agreement should also be considered as true.
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The other terms of the sale agreement can also be taken to be true as seen in the
sale agreement. The first plaintiff had agreed to purchase the property at the
rate of Rs.40,000/- per cent. Subsequent to the sale deed, it came to the
knowledge of the plaintiff that the executant of sale agreement, namely the first
defendant has got a saleable interest only in respect of 36 cents.
16.It is not the contention of the first defendant that the plaintiff's Trust did not
have any financial capability to meet the sale consideration. The first defendant
had denied the very execution of the sale agreement. Hence the pleadings as to
the absence of readiness and willingness did not emanate from the defendants.
The learned counsel for the respondent submitted that the appellant was not
ready and willing to perform his part of contract any time before or after the
suit. In respect of his contention, he relied on the judgment in M.Jeyaprakash
Narayanan Vs. Santhammal and 3 others reported in 2018(1) CTC 701 and
the judgment in the S.Palanivel and another Vs. P.Ntesan and 4 others
reported in 2018(1) CTC 50 . In the judgment reported in 2018 (1) CTC 701,
it is held as follows:
13. As abovenoted, the parties have entered into the sale
agreement in respect of the extent of 1 Acre and 11 Cents in the
suit survey number. Now, according to the plaintiff, the parties
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had agreed to go for the sale deed of an extent of 20 ¼ Cents
and accordingly, it is found that the sale deed, dated
06.06.2002, had come into existence only for an extent of 16 ¼
Cents. However, with reference to the abovesaid case of the
plaintiff, with reference to the alleged agreement or
understanding entered into between the parties as regards the
conveyance of 20 ¼ Cents of land in the suit survey number,
there is no clear cut case projected by the plaintiff as to where
the abovesaid extent lies in the suit survey number and within
what boundaries the same lies and what is the nature of the
agreement or understanding entered into between the parties
with reference to the same following Ex.A1 and in such view of
the matter, when the parties are at issue as regards the lie of
the abovesaid land, particularly, the first defendant disputing
that 4 Cents of land in respect of which, the plaintiff has come
forward with the suit, forms part of the road portion and he
had agreed to convey only the 4 Cents of land on the western
side and on the other hand, the plaintiff would claim that the
parties had agreed as regards the conveyance of 4 Cents of
land on the south-eastern side and with reference to the
abovesaid alleged agreement between the parties, there is no
acceptable and reliable material putforth by the plaintiff one
way or http://www.judis.nic.in the other either by way of
pleadings or by way of the convincing evidence, in such view
of the matter, the case of the plaintiff that the first defendant
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had agreed to convey the extent of 20 ¼ Cents of land in favour
of the plaintiff's nominee, inclusive of 4 Cents of land, as
described in the plaint, as such, cannot be countenanced and
in such view of the matter, it could be seen that the plaintiff has
failed to establish the consensus ad idem between the parties
with reference to the conveyance of 4 Cents of land described
in the plaint following Ex.A1 – sale agreement. On the above
score also, the plaintiff's suit has to fail.
17. It is to be noted that the time for performing the contract was agreed at four
months and the date of sale agreement is 04.03.2010. Within one month, i.e on
07.04.2010, the first defendant's wife sent a legal notice, claiming her
entitlement in the subject/suit property. The first defendant was not a party to
the notice, dated 07.04.2010. The appellant/plaintiff sent a reply notice on
12.05.2010 to the wife of the first defendant and on the same day he also called
upon the first defendant to receive the balance consideration and execute the
sale deed. Since the first defendant refused to execute the sale deed, he knocked
the doors of the Court by filing the suit on 01.07.2010. So, the conduct of the
appellant/plaintiff in seeking the legal recourse for getting the sale deed
executed cannot be overlooked. From the said conduct, it can be safely inferred
that the plaintiff is not only ready, but also willing to perform his part of
contract.
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18.The appellant /plaintiff did not stop with calling upon the first defendant to
execute the sale deed. He also initiated the legal proceedings and the same
would show his willingness. It has been held in catena of decisions of the
Honourable Supreme Court that to prove readiness and willingness, the
plaintiff need not deposit the balance sale consideration in the Court, unless he
has been ordered to do so. The learned counsel for the appellants emphasised
the above point by relying on the judgment of the Honourable Division Bench
of this Court, rendered in the case of R.Leela Ammal Vs. V.Gopal, reported in
2017 (6) MLJ Page 134, wherein it is held as follows:-
“In this context, it is worthwhile to refer to Explanation (i) to
Section 16(c) of the Specific Relief Act, 1963 which reads as
follows:-
“16.Personal bars to relief. Specific performance of a contract
cannot be enforced in favour of a person:-
...
(c) Who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms of
contract which are to be performed by him, other than terms of
performance of which has been prevented or waived by the
defendant.
Explanation: For the purpose of clause (c)
(i) Where a contract involves the payment of money, it is not
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essential for the plaintiff to actually tender to the
defendant or to deposit in Court any money except when
so directed by the Court.
(ii)The plaintiff must aver performance of, or readiness and
willingness to perform the contract according to its true
construction.
28.Thus, as per the explanation appended to Section 16(c) of
the Specific Relief Act, even though the recitals contained in the
agreement of sale, Ex.A-1, dated 05.04.2008 requires the
plaintiff to deposit the amount in the event of the failure or
refusal of the defendant to come forward to execute the sale
deed, It is not essential to deposit the amount by the plaintiff
before filing the suit unless it is ordered by the Court. Further,
in this context, the recent decision of the Honourable Supreme
Court in the cae of (Mrs.A.Kanthamani Vs.Mrs. Nasreen
Ahmed) Civil Appeal No.2714 of 2008 dated 6th March 2017
would be a fitting answer to the issue. The relevant portion of
the order dated 06.03.2017 of the Honourable Supreme Court
reads as follows:-
“28.The expression “readiness and willingness'' has
been the subject matter of interpretation in many cases prior to
its insertion in Section 16(c) of the Specific Relief Act, 1996.
While examining the question as to how and in what manner, the
plaintiff is required to prove his financial readiness so as to
enable him to claim specific performance of the contract/
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agreement, the Privy Council in a leading case which arose
from the Indian Courts (Bombay) in Bank of India and ohers
V.Jamsetji A.H.Chinoy and Chinoy and Company) AIR 1950 PC
50, approved the view taken by Chagla, A.C.J, and held inter
alia that “it is not necessary for the plaintiff to produce the
money or vouch a concluded scheme for financing the
transaction to prove his readiness and willingness.”
29.In the light of the above decision of the Honourable Supreme
Court and taking note of the evidence of the plaintiff, we hold
that the plaintiff was always ready and willing to perform his
part of the contract. Moreover, it is not the case of the defendant
that the plaintiff was never ready and willing to perform his
part of the contract. Further, the evidence on record shows that
it is the defendant who issued the notice dated 05.05.2008,
Ex.A4 calling upon the plaintiff to cancel the agreement even
before expiry of the time stipulated under the agreement,
Ex.A-1.Further, as observed earlier, in this case, in the oral
evidence adduced by the plaintiff, he has stated that he is in
possession of funds received from his sambandhi and daughter
to perform his part of the contract and hence, considering the
factual aspects of this case, we are of the opinion that this is
sufficient to come to a conclusion that the plaintiff was always
ready and willing to perform his part of the contract.”
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19. The above judgement is squarely applicable to the facts of this case. Thus,
the point No.1 is answered in favour of the appellants.
20. In the sale agreement Ex.A1, the extent of the property is shown as 53
cents. But in reality, the whole of 53 cents did not belong to the first defendant
and the wife of the first defendant is also entitled to a portion of the same. The
first defendant had executed Ex.B.1, Sale Deed in favour of the second
defendant, during the pendency of the suit and the extent of property is shown
in the above sale deed as 36 cents. So the first defendant cannot deny his title
for 36 cents at the time when he executed Ex.A1 sale agreement. The sale deed
in favour of the wife of the first defendant, Zeenath Beevi, which is produced
as Ex.A8 would show that she is entitled to only 12 cents. The said Zeenath
Beevi did not raise any objection for the sale deed executed by her husband in
favour of the second defendant. These facts would confirm that the first
defendant had his title in respect of 36 cents out of 53 cents mentioned in
Ex.A1.
21.The learned counsel for the appellant / plaintiff submitted that by virtue of
two different title deeds in respect of 36 cents and 12 cents, vide Ex.A6 &
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Ex.A8, it can be safely presumed that the extent belong to the first defendant
and his wife are severable and they have specific boundaries. As per Section
12(2) of Specific Relief Act, if a party to the contract is unable to perform the
whole of the contract, but the part which must be left unperformed bears only a
small proportion, the Court can direct specific performance of so much of
contract as can be performed and award compensation for the deficiency.
Though the plaintiff was ready and willing to get the whole of 53 cents, he
came to know later that the vendor has a saleable interest only to an extent of
36 cents. The person who is entitled to the portion left out is none other than
the wife of the first defendant. And this was already in the knowledge of the
first defendant. So, for his inability to execute the sale deed in respect of the
whole of 53 cents, the appellant/plaintiff cannot be blamed. But, it is open to
first defendant to limit the sale price only in respect of 36 cents at the rate per
cent as agreed vide Ex.A1/sale Agreement.
22.In this context it is worthwhile to refer to the judgment of the Honourable
Supreme Court rendered in the case of Surinder Singh Vs. Kapoor Singh (D)
through LRs and others, reported in 2005 (2) STC Page 801. In the said
judgement it is held as follows:-
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“9.Section 12(3) of the Act is a beneficial provision so far
as the purchasers are concerned. In the instant case, in
view of the findings of fact arrived at by the High Court,
the decree for specific performance of contract in respect
of the entire suit land could not have been granted as the
Appellant herein was not authorized by his sister to enter
into the agreement for sale. The relinquishment of claim as
contemplated under Section 12(3)(ii) of the Act as regard
performance of the remaining part of the contract and all
rights to compensation need not specifically be pleaded
and can be made at any stage of the litigation. Such a plea
can also be raised at the appellate stage. Delay by itself, it
is trite, may not stand in the way of the plaintiff from
claiming the relief unless the defendant establishes
prejudice.
10.In this case, the Division Bench of the High Court passed a
decree of specific performance of contract relying on or on
the basis of a decision of this Court in Kartar Singh (supra).
11.In Kartar Singh (supra), as in the present case, the
Respondent therein and the sister had half share in the
property, an agreement for sale was also entered into by the
Respondent not only in respect of his own share but also in
respect of share of his sister. In that case, the High Court was
of the opinion that the Respondent therein could not and in
fact did not agree to sell the whole of the property by himself
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as neither he had any authority to do so nor did he represent
that he was the owner of the whole of the property. It was, in
the aforementioned factual backdrop, the High Court further
held that that sub-sections (2) and (3) of Section 12 of the Act
would not be applicable because the portion to be left out was
not a small portion of the whole property. This Court reversed
the said finding of the High Court holding :
"Secondly, the agreement of sale clearly mentions that
respondent was entering into the agreement both on behalf of
himself and his sister, and that he was, under the agreement,
selling the whole of his share and also the whole of the share
of his sister in the property. Further in the agreement itself he
had stated that he was responsible to get the sale deed
executed by his sister and that he would persuade her to do
so. This being the case, the properties agreed to be sold were
clearly distinguishable by the shares of the respective
vendors. In the circumstances when the absentee vendor, for
some reason or the other, refused to accept the agreement,
there is no reason why the agreement should not be enforced
against the vendor who had signed it and whose property is
identifiable by his specific share.
5. We are, therefore, of the view that this is not a case which is
covered by Section 12 of the Act. It is clear from Section 12
that it relates to the specific performance of a part of a
contract. The present is not a case of the performance of a
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part of the contract but of the whole of the contract so far as
the contracting party, namely, the respondent is concerned.
Under the agreement, he had contracted to sell whole of his
property. The two contracts, viz. for the sale of his share and
of his sister's share were separate and were severable from
each other although they were incorporated in one agreement.
In fact, there was no contract between the appellant and the
respondent's sister and the only valid contract was with
respondent in respect of his share in the property."
23. In the subsequent judgment of the Honourable Supreme Court held in
B.Santhoshamma and another Vs. D.Sarala and another and reported in
2021 (1) LW 435, it is held as under:-
It is well settled that the Court ordinarily enforces a contract
in its entirety by passing a decree for its specific
performance. However, Section 12 of the Specific Relief Act
carves out exceptions, where the Court might direct specific
performance of a contract in part. Section 12 of the Specific
Relief Act, 1963 is set out herein below for convenience.
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
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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.
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
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exist at the time of its performance.
72.Where a party to the contract is unable to perform
the whole of his part of the contract, the Court may, in
the circumstances mentioned in Section 12 of the
S.R.A., direct the specific performance of so much of
the contract, as can be performed, particularly where
the value of the part of the contract left unperformed
would be small in proportion to the total value of the
contract and admits of compensation.”
24. It is proved from the facts and evidence of this case that the left out portion
of 12 cents belongs to the wife of the first defendant and it was smaller in size
than the portion belonged to the first defendant. But, the learned trial judge
without considering the above fact, non-suited the appellant/plaintiff to get the
specific performance for part of the contract in accordance with Section 12(2)
of Specific Relief Act and it is not correct.
25. The learned counsel for the respondent submitted that in order to get the
benefits of Section 12(3) of the Specific Relief Act, it should be proved that the
appellant has relinquished the remaining part of the contract and his right to
compensation either for the deficiency or for the loss or damage sustained by
him through the default of the defendant. Section 12(3)(b)(ii) of the Specific
Relief Act also mandates the above condition in order to get the relief of
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A.S.(MD)No.82 of 2019
specific performance for the portion of the contract. In the plaint filed by the
appellant/plaintiff itself, it is stated that the appellant restricts his right for
specific performance in respect of 36 cents alone. In the particulars of property
also he has stated about only 36 cents for which the first respondent has got the
saleable interest. It has to be noted that the appellant has not claimed any
compensation in respect of the left out portion for which he was unable to get a
decree. So, both the relinquishments in respect of the receiving part of the
contract and the right to claim for the deficiency or for the loss or damage have
been seen visibly.
26. Since the decree for specific performance can be granted only in respect of
36 cents, it is needless to point out that the appellant is bound to pay the sale
consideration only in respect of 36 cents alone. Hence, I feel there is no
difficulty in giving the benefit of Section 12 of the Specific Relief Act to the
appellant. Thus point No.2 is answered.
27. Prior to Specific Relief Amendment Act, 2018, the Courts have wider power
to exercise discretion in giving the reliefs of specific performance. Though the
sale agreement relies to the period prior to Specific Relief Amendment Act
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A.S.(MD)No.82 of 2019
2018, the Honourable Supreme Court in Sughar Singh Vs. Hari Singh (Dead)
through LRs and others, reported in 2021 AIR SC 5581, has held that the
amendment brought to the Specific Relief Act, especially to Section 10(a) can
be a guide. Even, when the discretion was available to the Courts, the same has
to be exercised judicially and reasonably. In the wordings of the above
Judgment of the Honourable Supreme Court it is said as under:
“......For the aforesaid, even amendment to the Specific
Relief Act, 1963 by which section 10(a) has been inserted,
though may not be applicable retrospectively but can be a
guide on the discretionary relief. Now the legislature has
also thought it to insert Section 10(a) and now the specific
performance is no longer a discretionary relief. As such the
question whether the said provision would be applicable
retrospectively or not and/or should be made applicable to
all pending proceedings including appeals is kept open.
However, at the same time, as observed hereinabove, the
same can be a guide.”
28. For the judicious exercise of power of discretion, it is ideal for the Courts to
look into the conduct of the parties. In the reply notice sent by the first
respondent/first defendant, he denied the very execution of the sale agreement.
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A.S.(MD)No.82 of 2019
The above stand was taken by the first defendant by making use of the notice
sent by his wife. This conduct on the part of the first defendant would show that
he was instrumental in sending notice through his wife, shortly after execution
of the sale agreement. The second defendant was examined as DW 2. During
his cross examination, he gave a spontaneous answer that the first defendant is
his brother in law. Though, he tried to retract his statement, thereafter the above
evidence of D.W 2 would only reveal that the second defendant is a close
relative of the first defendant. The second defendant /DW 2 was not even able
to tell the survey numbers and boundaries of the suit property, during his
examination. He stated in his evidence that he could tell those details only by
looking at the document. These facts would also show that the second
defendant was not a bonafide purchaser for valuable consideration, but he had
acted in collusion with the first defendant, in order to defeat the interest of the
plaintiff. So no validity can be attached to the sale deed executed in favour of
the second defendant and he is not a bonafide purchaser. The sale deed was also
executed in his favour during the pendency of the suit and that will not bind the
interest on the appellant / plaintiff.
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A.S.(MD)No.82 of 2019
29.Since the appellant / plaintiff has proved the genuineness of the sale
agreement, his readiness and willingness and severability of contract, in tune
with Section 12(2) of Specific Relief Act, I feel that he is entitled to get the
relief of specific performance in respect of 36 cents as prayed by him. Thus, the
point Nos.3 & 4 are answered accordingly.
In the result, the appeal suit is allowed. The judgment of the learned Principal
District Judge, Kanyakumari in O.S.No.154 of 2010 dated, 14.03.2019 is
hereby set aside. The suit is decreed for the relief of specific performance in
respect of 36 cents alone. Time for payment of sale consideration is fixed as
one month from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
26.04.2022
Index : Yes / No
Internet: Yes / No
vrn/CM
To
1.The Principal District Judge, Kanyakumari District, Nagercoil.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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A.S.(MD)No.82 of 2019
R.N.MANJULA, J.,
vrn/CM
A.S.(MD)No.82 of 2019
and
C.M.P.(MD)No.4525 of 2019
26.04.2022
https://www.mhc.tn.gov.in/judis
