Madras High Court
Mohammed Hammed (Died) vs M.A.Karuppanan (Died) on 24 February, 2022
1 S.A.(MD)No.671 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.04.2022
Pronounced on : 06.06.2022
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.671 of 2010
and
M.P.(MD)No.2 of 2010
1.Mohammed Hammed (Died)
2.Mohammed Shajeed (Died)
3.Mohammed Shakeed
4.Mohammed Javeed
5.Mohammed Khaleed ... Defendants 4 to 8/
Appellants /Appellants
6.A.Nasira Farhath
7.Humera Fathima
8.Aness Fathima
9.Abdur Rahman
(Appellants 6 to 9 are suo motu impleaded as Lrs of the
deceased 1st appellant vide order dated 24.02.2022
made in S.A.(MD)No.671 of 2010 by GRSJ)
10.Asmera Sultana
11.Bushra Jabeen
12.Zabeera ... Appellants
(Appellants 10 to 12 are suo motu impleaded as Lrs of
the deceased 2nd appellant vide order dated 24.02.2022
made in S.A.(MD)No.671 of 2010 by GRSJ)
https://www.mhc.tn.gov.in/judis
2 S.A.(MD)No.671 OF 2010
Vs.
1.M.A.Karuppanan (Died)
2.A.L.Anwar Basha
3.M.A.Babjan
4.Sabitha Begam ... Plaintiff, Defendants 1, 2 & 9 /
Respondents
5.K.Ravi
6.L.Vanalakshmi
7.A.K.Kamaravel
8.R.Saraswathi ... Respondents
(Respondents 5 to 8 are suo motu brought on
record Lrs of the deceased 1st respondent vide
order dated 14.03.2022 made in S.A.(MD)No.671
of 2010 by GRSJ)
Prayer: Second appeal filed under Section 100 of C.P.C., against the
Judgment and Decree in A.S.No.179 of 2008 dated 19.03.2009 on the file
of the Principal District Judge, Trichirappalli, confirming the judgment
and decree in O.S.No.552 of 1989 dated 24.03.2008 on the file of the I
Additional Subordinate Judge, Trichirappalli.
For Appellants : Mr.K.Govindarajan
For R5 : Mr.J.Barathan
For R-7 : Mr.C.K.M.Appaji
For R-3, R-6 &
R-8 : No appearance.
https://www.mhc.tn.gov.in/judis
3 S.A.(MD)No.671 OF 2010
JUDGMENT
This second appeal arises out of a suit for specific performance
filed by one Mr.M.A.Karuppanan in O.S.No.552 of 1989 on the file of
the Sub Court, Trichirappalli.
2.The case of the plaintiff was as follows:
The suit “A” schedule property belonged to the first defendant
namely, Anwar Basha. He let out a portion thereof described as suit “B”
schedule property in favour of the plaintiff in the year 1975. The
plaintiff was in possession of the tenanted portion ever since. The first
defendant entered into a sale agreement with the plaintiff agreeing to sell
“B” schedule property for a sum of Rs.2,00,000/-. Rs.10,000/- was
received as advance. Though the plaintiff was always ready and willing
to perform his part of the contract, the first defendant did not come
forward to conclude the transaction. The plaintiff was informed vide
notice dated 28.07.1989 that the first and second defendants had sold the
suit “A” schedule property in favour of the defendants 3 to 8 on
15.07.1989 (Ex.B1). The plaintiff was called upon to pay rent to the
purchasers thereafter. This sale in favour of the defendants 3 to 8 was
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not true or valid and in any event, not binding on the plaintiff. Seeking
specific performance of the agreement dated 01.07.1989, the aforesaid
suit came to be laid. During the pendency of the suit, the third defendant
passed away and his daughter namely, Sabitha Begam was impleaded as
ninth defendant.
3.The defendants filed written statement controverting the
plaint averments. Apart from the suit on hand, four other suits namely,
O.S.Nos.719, 721 and 722 of 1989 and O.S.No.684 of 1993 also for the
relief of specific performance were instituted. The other plaintiffs were
also tenants occupying the remaining portion of the suit “A” schedule
property. Based on the divergent pleadings, the trial Court framed as
many as five issues. On the side of the plaintiffs, seven witnesses were
examined. M.A.Karuppannan examined himself as P.W.1 and Exs.A1 to
A35 were marked. On the side of the defendants, three witnesses were
examined and Exs.B1 to B10 were marked. An Advocate Commissioner
was appointed and his report and plan were marked as Exs.C1 and C2.
The survey/sketch was marked as Ex.C3.
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4.After consideration of the evidence on record, by a common
judgment and decree dated 24.03.2008, all the suits were decreed as
prayed for. Aggrieved by the same, A.S.Nos.178, 179, 180, 216 and 217
of 2008 were filed. A.S.No.179 of 2008 arose out the suit filed by
M.A.Karuppanan. By the impugned common judgment dated
19.03.2009, all the appeals were dismissed and the judgements and
decrees of the trial Court were confirmed. Challenging the same, S.A.
(MD)Nos.670 to 673 of 2010 were filed.
5.During the pendency of these second appeals, the matters
were refereed before the Lok Adalat. The other plaintiffs received cash
settlement from the appellants herein and the matters were compromised
between them. The other second appeals were disposed of after
recording the aforesaid settlement effected between the parties. S.A.
(MD)No.671 of 2010 alone remains to be considered.
6.During the pendency of this second appeal, the first appellant
as well as the second appellant passed away. Their legal heirs have been
brought on record. Likewise, the contesting respondent/plaintiff also
passed away. His legal heirs namely, the respondents 5 to 8 were
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brought on record. Notices were sent to the impleaded respondents
returnable by 31.03.2022. Counsel entered appearance for the fifth
respondent on 21.03.2022. Another counsel entered appearance for the
seventh respondent on 31.03.2022. The eighth respondent had been
served on 28.03.20222 but she did not choose to enter appearance. Since
the sixth respondent was not served, fresh notice was ordered returnable
by 13.04.2022. Service was completed and her name was also printed in
the cause list. However, the sixth and eighth respondents, the daughters
of the late plaintiff did not enter appearance and only the sons were
represented by counsel. The case was taken up for hearing on more than
one occasion and finally judgment was reserved on 29.04.2022.
7.The learned counsel for the appellants argued that the suit
agreement is suffering from vagueness and that the property proposed to
be sold was not certain. According to the learned counsel, such an
agreement could not be enforced. He relied on the judgments reported in
(1996) 6 SCC 699 (Nahar Singh Vs. Harnak Singh) and (2014) 16 SCC
662 (Shanker Singh Vs. Narinder Singh).
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8.Though his contentions were no doubt persuasive, I felt that
the second appeal deserved to be admitted on a non-controversial
ground. It was conceded by the learned counsel for the respondents that
the suit schedule property had been demolished by the local body.
However, the learned counsel for the contesting respondents would
strongly urge that it was a malicious act engineered by the appellants.
The learned counsel would further allege that in order to defeat the
decree obtained by the respondents, the appellants had prevailed upon
the local body to demolish the property by projecting it as if the building
had become old and dilapidated. They would also claim that the action
of the local body had been put to challenge in writ proceedings. The
power of the local body to demolish a dangerous structure is beyond
question. Whether the power was properly applied in this case or not is
beyond the scope of the present proceeding. The admitted fact is that the
subject matter of the agreement has ceased to exist. Therefore, the
following substantial question of law was framed:
“Whether the decree for specific performance
granted by the Courts below is liable to be set aside as the
suit building itself had been demolished?”
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9.I heard the learned counsel on either side. The Trichirappalli
Municipality Corporation invoked Sections 327 and 328 of the relevant
statute and issued notices to the building owners to demolish the suit
property bearing Door Nos.16 and 17, Singarathope, Srirangam Division,
Ward No.13, Trichirappalli, in May 2012 itself. This was challenged in
W.P.(MD)Nos.7083 and 7101 of 2012. The fact remains that the entire
suit building had been totally demolished. Photographs showing the
vacant site after demolition were produced before me. Thus, as on date,
the subject matter of the agreement has ceased to exist. Of course, if the
dispute concerns lease alone, then as per Section 108(B) of the Transfer
of Property Act, 1882, the lease shall be void only at the option of lessee.
But the case on hand is not one such. It pertains to specific performance
of a sale agreement. The suit was decreed as prayed for. During the
pendency of challenge to the decree in second appeal, the subject matter
had been destroyed. Section 56 of the Contract Act, 1872 reads that a
contract to do an act which, after contract is made, becomes impossible,
becomes void when the act becomes impossible. Of course, Section 13
of the Specific Relief Act, 1877, reads that notwithstanding anything
contained in Section 56 of the Contract Act, 1872, a contract is not
wholly impossible of performance because a portion of its subject-matter,
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existing at its date, has ceased to exist at the time of the performance.
The Law Commission of India in its Report No.9 specifically proposed
omitting reference to Section 56 of the Contract Act. The 1877 Act has
since repealed by Central Act 14 of 1963. In the new Act, the
corresponding provision does not contain any reference to Section 56 of
the Contract Act. The judgment reported in (2007) 12 SCC 175 (Rozen
Mian Vs. Tahera Begum) applies to Section 56 of the Contract Act,
1872 to a case relating to specific performance.
10.In the case on hand, the suit property was let out in favour a
number of tenants. The plaintiff herein was one of them. The suit
building came to demolished by the local body. The other tenants
reconciled themselves and compromised the matter with the appellants.
The first respondent however continued the fight. Following his demise,
his children are also not ready to compromise the matter. When the suit
building itself is not in existence, the question of directing the appellants
to execute a sale deed conveying suit “B” schedule property will not arise
at all. The contract has become impossible of performance. The suit
agreement relates only to the tenanted portion and nothing else. It does
not speak of conveying any undivided share in the land. The agreement
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itself is delightfully vague. No particulars are set out therein. However,
one can surmise that whatever portion was occupied by the plaintiff as
tenant was proposed to be sold to him for a sale consideration of
Rs.2,00,000/-. Only a sum of Rs.10,000/- was taken as advance.
Applying Section 56 of the Indian Contract Act, I hold that in view of the
subsequent development, namely, demolition of the building, the
agreement has become void and the decree is unenforceable. The
substantial question of law is answered in favour of the appellants and
the impugned judgment and decree are set aside.
11.I had earlier called upon the appellants to make a fair offer
to the contesting respondents. When they compromised matter by
making cash settlements in favour the other plaintiffs, they cannot take a
different yardstick in this case alone. It is of course true that unlike the
other tenants, the contesting respondents are unwilling to settle the
matter. The appellants fairly submitted that they are ready to pay a sum
of Rs.5,00,000/- towards full and final settlement of all the claims of
legal heirs of the plaintiff. In view of the undertaking given by the
appellants through their counsel, I direct the appellants to deposit a sum
of Rs.5,00,000/- to the credit of O.S.No.552 of 1989 on the file of the
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Sub Court, Trichirappalli, within a period of eight weeks from the date of
receipt of a copy of this judgment. It is open to the legal heirs of the
deceased plaintiff to jointly apply to the Court below and withdraw the
said amount. If the legal heirs of the deceased plaintiff could not make a
joint application or if they are not willing to give quietus, the appellants
can take back the deposited amount after one year. It is of course open to
the contesting respondents to withdraw whatever amount that had already
been deposited by them with accrued interest.
12.With these directions, the second appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
06.06.2022
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.
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G.R.SWAMINATHAN,J.
ias
To:
1.The Principal District Court,
Trichirappalli.
2.The I Additional Sub Court,
Trichirappalli.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.671 of 2010
06.06.2022
https://www.mhc.tn.gov.in/judis
