Madras High Court
M.Murugesan vs N. Mani on 7 December, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
A.S.No.48 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.48 of 2013
1. M.Murugesan
2. M.Srinivasan
3. Rajeswari
4. Sakthivel
Raguraman (Died)
5. Indirani
6. Madhan
(Cause title accepted vide
order of this Court dated
31.01.2013 made in M.P.
No.1 /2013 in A.S.SR.
No.10795/2012) ... Appellants
-Vs-
1. N. Mani
2. P.Senthil
3. Vijaya
4. Devika
5. Sutha
6. Rathi
Respondents 3 to 6 are impleaded
vide order of this Court dated
25.08.2023 made in C.M.P.No.
19283/2023 in A.S.No.43/2013) ... Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
judgment and decree passed in O.S.No.12 of 2011 dated 27.12.2011 on
the file of the learned Additional District Judge (Fast Track Court No.1)
Salem.
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Page 1 of 22
A.S.No.48 of 2013
For Appellants : Mr.V.V.Sriram
For Respondents
For R1 & R2 : Mr.S.Kalyanaraman
For R3 to R6 : Mr.Pachaiyappan
For Mr.N.Vijaya Baskar
JUDGMENT
This appeal is directed as against the judgment and decree
dated 27.12.2011 passed in O.S.No.12 of 2011 by the learned Additional
District Judge, Fast Track Court No.1, Salem, thereby allowing the suit
filed by the respondents 1 & 2 for specific performance.
2. The suit is filed for specific performance. The appellants are
the defendants and the respondents 1 & 2 are the plaintiffs. The
respondent 3 to 6 are impleaded in the appeal suit, who claiming share in
the suit property. For the sake of convenience the parties are referred to
as per their ranking in the trial Court.
3. The case of the plaintiff is that the suit property was
purchased by late N.Marigounder, by the registered sale deed dated
22.10.1973. He has got three sons viz., Murugesan, the first defendant,
Gopal and Mani. After demise of the said Marigounder, they inherited the
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suit property. Thereafter, the two sons viz., Gopal and Mani died. The
said Gopal died leaving behind the defendants 3 to 5 as his legal heirs
and Mani died leaving behind the defendants 6 & 7 as his legal heirs. The
second defendant is the son of the first defendant. They are being the
legal heirs of the late Marigounder, they offered to sell the suit property
to the plaintiffs for the total sale consideration of Rs. 15,75,800/-. The
suit property is a land ad measuring 4 acre 38 cents. They entered into an
agreement for sale on 21.08.2009 and received a sum of Rs.6,10,000/- as
advance from the plaintiffs. The time for execution of sale deed was
fixed as six months from the date of agreement for sale. The possession
of the suit property was handed over to the plaintiffs. When the plaintiffs
had approached the defendants on several occasions by tendering the
balance sale consideration for execution of sale deed, the defendants
have dodged by saying some lame excuses and evaded to perform their
part of contract by executing sale deed.
3.1. Therefore, the plaintiffs had issued notice on 24.02.2010,
thereby called upon the defendants to execute sale deed after receipt of
the balance sale consideration. On receipt of the said notice, the first
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defendant said that his daughters are claiming share and therefore, they
were not in a position to execute the sale deed and sought further time to
settle the issue between his daughters. Thereafter on 29.04.2010, the
daughters of the first defendant sent notice to the plaintiffs. Even then,
the defendants failed to execute any sale deed in favour of the plaintiffs.
Finally, the plaintiffs approached the defendants on 15.01.2011 and the
defendants agreed to execute sale deed on 20.01.2011 and they also
furnished copies of their photos and identification papers. When the
plaintiffs went to the Sub Registrar Office on 20.02.2011, with balance
sale consideration, the defendants failed to come to the Registrar Office
and did not execute any sale deed as agreed by them. Hence, the suit.
4. Resisting the same, the defendants filed written statement
stating that the suit property was offered for sale for the sale
consideration of Rs.1,25,000/- and received a sum of Rs.1,00,000/- from
the plaintiffs. However, the plaintiffs failed to pay the balance sale
consideration as such, no sale deed was executed in favour of the
plaintiffs. It was a registered agreement for sale. However, no possession
was delivered to the plaintiffs as part performance of the agreement.
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Even according to the plaintiffs, after the agreement for sale dated
21.08.2009, and on receipt of part of sale consideration of Rs.6,10,000/-,
the plaintiffs did not take any steps to pay balance sale consideration.
Further the time was fixed as four months for payment of balance sale
consideration and execution of sale deed. The plaintiffs failed to pay the
balance sale consideration as such the defendants could not able to
execute any sale deed. In fact, the plaintiffs had sent notice only on
24.02.2010, after the period of six months from the date of agreement.
Therefore, the suit for specific performance cannot be granted and prayed
for dismissal of suit.
5. On completion of pleadings, the trial Court framed the
following issues :-
“(i) Whether the plaintiffs are in possession and
enjoyment of the suit property in pursuance of the sale
agreement dated 21.08.2009?
(ii) Whether the plaintiffs are ready and willing to
perform their part of the contract?
(iii) Whether the plaintiffs are entitled for the
relief of specific performance or the alternative relief
prayed for?
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(iv) Whether the plaintiffs are entitled for the relief
of permanent injunction prayed for?
(v) To what relief if any, the plaintiffs are
entitled?”
6. On the side of the plaintiffs, they examined P.W.1 & P.W.2
and marked documents in Ex.A.1 to Ex.A.17. On the side of the
defendants, they examined D.W.1 to D.W.3 and marked documents in
Ex.B.1 to Ex.B.3. After considering the oral and documentary evidences,
the trial Court decreed the specific performance suit in favour of the
plaintiffs. Aggrieved by the same, the defendants filed the present appeal.
7. While pending the appeal, the respondents 3 to 6 were
impleaded themselves on the ground that, the respondents 3 & 4 are the
two daughters of deceased Marigounder and the respondents 5 & 6 are
the daughters of deceased Mani. Though they were not parties to the
agreement for sale dated 21.08.2009, they have their respective shares in
the suit property. They were also sailing with the appellants.
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8. The learned counsel appearing for the appellants submitted
that the suit property was a self-acquired property of one Marigounder.
He had three sons and two daughters. After his demise, his three sons and
two daughters are his legal heirs. His two sons viz., Gopal and Mani died
and one son viz., the first defendant and two daughters viz., respondents
3 & 4 are alive. Though the first defendant along with legal heir of the
deceased son Mani viz., Indirani and Madhan, who arrayed as defendants
6 & 7, had entered into agreement for sale, they left out other legal heirs
viz., the respondents 5 & 6. They also left out the daughters of the
deceased Marigounder viz., the respondents 3 & 4 in the agreement for
sale with the plaintiffs. Therefore, they are having their respective shares
in the suit property and as such they are necessary parties to the suit.
When the parties have right and title over the property, they are necessary
parties to the proceedings. But, the plaintiffs without adding them as
parties, they filed suit and obtained decree of specific performance.
8.1. He further submitted that the defendants had entered into an
agreement for sale vide registered document No.329/2009 dated
05.02.2009. But the plaintiffs failed to perform their part of contract.
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Therefore, it was not acted upon. Subsequently, they had entered into
agreement for sale dated 21.08.2009, which is an unregistered one. The
time for execution of sale deed was fixed as six months from the date of
agreement for sale. They failed to pay the balance sale consideration and
as such, the agreement for sale is itself void.
8.2. He also submitted that the plaintiffs caused legal notice only
on 24.02.2010, that too after the period of six months from the agreement
for sale. The plaintiffs never visited the Sub Registrar Office for payment
of balance sale consideration. They did not even offer at any time with
regard to balance payment of sale consideration and also performance of
their part of contract. Once they failed to pay the balance sale
consideration, they cannot compelled the defendants to register sale deed
in their favour. The relief of specific performance is based on equity and
it cannot be granted automatically.
9. The learned counsel appearing for the respondents 3 to 6
contended that the possession and enjoyment of the suit property was
never handed over to the plaintiffs. All the legal heirs are in possession
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and enjoyment of the suit property. In fact, the plaintiffs had knowledge
about the other legal heirs even at the time of agreement for sale. Even
then, they did not add them as parties. The plaintiffs also suppressed the
earlier agreement for sale, which was registered one dated 05.02.2009
and filed the suit.
9.1. He further submitted that the defendants alone are not the
owners of the suit property. The respondents 3 to 6 herein are also have
their respective shares in the suit property. Therefore, they are necessary
party and they were also impleaded as parties to the suit. In support of
his contention, he relied upon the following judgments :-
(i) Civil Appeal No.7835 of 2014 dated 20.08.2014 in the case of
Pemmada Prabhakar and ors Vs. YoungMen's Vysya Association & ors
(ii) W.P.No.1621 of 2022 dated 19.03.2023 in the case of Sri.
Chinnasamy Gowda Vs. Shri Shivaramu & 59 ors.
10. The learned counsel appearing for the respondents 1 &
2/plaintiffs submitted that admittedly, the defendants had ended into an
agreement for sale with the defendants for the total sale consideration of
Rs.15,75,800/- on 21.08.2009, and received a sum of Rs.6,10,000/- as
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advance. They accepted to execute the sale deed within a period of six
months. Though the plaintiffs had shown their willingness to pay the
balance sale consideration, the defendants did not come forward to
receive the same and execute the sale deed in their favour.
10.1. Therefore, the plaintiffs were constrained to issue notice on
24.02.2010. Thereafter, the daughters of the first defendant caused notice
on 24.09.2010 to the plaintiffs. Hence, they approached the defendants
and prepared to get the sale deed executed in their favour. The defendants
also said that they will execute sale deed on 20.01.2011. On the date
fixed by the defendants for execution of sale deed viz., on 20.01.2011,
the plaintiffs were present in the Sub Registrar Office, Edappadi and also
furnished copies of their photo and identification documents. Even then,
the defendants failed to come to the Registrar office and did not execute
any sale deed.
10.2. He further submitted that though the respondents 3 to 6 are
having their respective shares in the suit property and they are not
necessary parties to the suit, since they are not parties to the agreement
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for sale dated 21.08.2009. They have to workout their remedy
individually by way of partition suit. In fact, on the date of allowing the
application to implead the respondents 3 to 6, the learned counsel
appearing for the plaintiffs were not present. Even then, this Court
allowed them to impleade themselves as respondents 3 to 6. Therefore,
the trial Court rightly decreed the suit and prayed for dismissal of this
appeal.
11. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
12. Having regard to the pleadings, evidence and the
submissions made by the learned counsel appearing on either side, the
following points arise for consideration in this appeal :-
(i) Whether the respondents 3 to 6 are necessary parties to the suit
and they are having their respective shares in the suit property?
(ii) Whether the plaintiffs proved their readiness and willingness to
perform their part of contract on 21.08.2009?
(iii) Whether the time is essence of contract or not?
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13. Admittedly, the suit property is a land ad measuring 4.38
acres and the same was purchased by one Marigounder by the registered
sale deed dated 22.10.1973. He died leaving behind his three sons viz.,
the first defendant and Gopal and Mani and two daughters viz., Vijaya &
Devika. The said Gopal died leaving behind the defendants 3 to 5 as his
legal heirs. The said Mani died leaving behind the defendants 6 & 7 and
Sudha and Radhi as his legal heirs. The defendants alone had entered into
the agreement for sale with the plaintiffs in respect of the suit property
for the total sale consideration of Rs.15,75,800/-, by way of unregistered
agreement dated 21.08.2009. On that day, the plaintiffs had paid a sum of
Rs.6,10,000/- as advance.
14. In fact, the plaintiffs already had entered into registered
agreement for sale with the same defendants on 05.02.2009 for the total
sum of Rs.1,25,000/- and paid a sum of Rs.1,00,000/- as advance.
However, it was not acted upon. Thereafter, both the parties again
entered into unregistered agreement for sale on 21.08.2009. In the plaint,
the plaintiffs did not even whisper about the registered agreement for sale
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dated 05.02.2009. The plaintiffs did not even whisper about the fact of
the registered agreement for sale dated 05.02.2009.
15. Further, the time for execution of sale deed was fixed as six
months. However, after the period of six months, the plaintiffs caused
legal notice on 24.02.2010 to the defendants, thereby called upon them to
performance their part of the contract, on receipt of balance sale
consideration. However, the plaintiffs did not file any suit for specific
performance. After the period of seven months, viz., on 24.09.2010, once
again the daughters of the first defendant cause another notice to the
plaintiffs, thereby called upon them that they also having share in the suit
property. Thereafter, the plaintiffs filed the suit for specific performance
without alternative relief of direction to return the advance amount with
interest. Therefore, the respondents 3 to 6 are also legal heirs of the
deceased Marigounder. The respondents 3 to 4 have 2/5 share in the suit
property and the respondents 5 & 6 have 12/25 share in the suit property.
Therefore, they are necessary parties to the suit. But the defendants alone
had entered into the agreement for sale with the plaintiffs without the
knowledge of the respondents 3 to 6 herein.
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16. In this regard, the learned counsel appearing for the
respondents 3 to 6 relied upon the judgment reported 2022 LiveLaw (SC)
802 in the case of Moreshar Yadaorao Mahajan Vs. Vyanakatesh
Sitaram Bhedi in which, the Hon'ble Supreme Court of India held as
follows :-
“17. This Court, in the case of Mumbai
International Airport Private Limited v. Regency
Convention Centre and Hotels Private Limited and
Others [(2010) 7 SCC 417] , has observed thus:
“15. A “necessary party” is a person who ought to
have been joined as a party and in whose absence no
effective decree could be passed at all by the court. If a
“necessary party” is not impleaded, the suit itself is
liable to be dismissed. A “proper party” is a party who,
though not a necessary party, is a person whose presence
would enable the court to completely, effectively and
adequately adjudicate upon all matters in dispute in the
suit, though he need not be a person in favour of or
against whom the decree is to be made. If a person is not
found to be a proper or necessary party, the court has no
jurisdiction to implead him, against the wishes of the
plaintiff. The fact that a person is likely to secure a
right/interest in a suit property, after the suit is decided
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against the plaintiff, will not make such person a
necessary party or a proper party to the suit for specific
performance.”
18. It could thus be seen that a “necessary party”
is a person who ought to have been joined as a party and
in whose absence no effective decree could be passed at
all by the court. It has been held that if a “necessary
party” is not impleaded, the suit itself is liable to be
dismissed.
19. As already discussed hereinabove, the plaintiff
himself has admitted in the plaint that the suit property is
jointly owned by the defendant, his wife and three sons. A
specific objection was also taken by the defendant in his
written statement with regard to non-joinder of
necessary parties. Since the suit property was jointly
owned by the defendant along with his wife and three
sons, an effective decree could not have been passed
affecting the rights of the defendant’s wife and three sons
without impleading them. Even in spite of the defendant
taking an objection in that regard, the plaintiff has
chosen not to implead the defendant’s wife and three
sons as party defendants. Insofar as the reliance placed
by Shri Chitnis on the judgment of this Court in the case
of Kasturi (supra) is concerned, the question therein was
as to whether a person who claims independent title and
possession adversely to the title of a vendor could be a
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necessary party or not. In this context, this Court held
thus:
“7. …….From the above, it is now clear that two
tests are to be satisfied for determining the question who
is a necessary party. Tests are — (1) there must be a
right to some relief against such party in respect of the
controversies involved in the proceedings; (2) no
effective decree can be passed in the absence of such
party.”
17. Thus, it is clear that for being a necessary party, the twin test
has to be satisfied. The first one is that there must be a right to some
relief against such party in respect of the controversies involved in the
proceedings and the second one is that no effective decree can be passed
in the absence of such party. Therefore, in the absent of the respondents 3
to 6 no effective decree could not been passed. Therefore, the relief of
specific performance cannot be granted without the necessary parties
viz., the respondents 3 to 6 herein in favour of the plaintiffs. Accordingly
the first point is answered in favour of the respondents 3 to 6 herein.
18. Insofar as the point No.2 is concerned, though the plaintiffs
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stated in their plaint that they had visited the Sub Registrar office on
20.01.2011, they failed to produce any the documents to prove their case.
They failed to examine anybody and failed to produce any materials or
registers in order to prove that they were present in the Sub Registrar
office, Edappadi. It is also evident that the time was fixed as six months
as per the agreement for sale 21.08.2009. Only after completion of six
months period, the plaintiffs cause legal notice on 24.02.2010. They also
failed to deposit the balance sale consideration any where to prove their
readiness and willingness to perform their part of contract. In fact after
receipt of notice from the daughters of the first defendant dated
24.09.2010, the present suit had been laid on 24.01.2011. After one
month from the date of the suit, the plaintiffs had deposited the balance
sale consideration before the trial Court. It shows that the plaintiffs were
not ready to pay the balance sale consideration as agreed by them.
Further, the relief of specific performance is being equity in nature, it
cannot be granted in favour of the plaintiffs. Accordingly, the point No.2
is answered in favour of the defendants.
19. In respect of point No.3 is concerned, as per the agreement
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dated 21.08.2009, the time was fixed for execution of sale deed is six
months, on payment of balance sale consideration. However, the
plaintiffs failed to take any steps to performance their part of contract. It
is relevant to extract the provision under Section 55 of the Contract Act
as follows :-
“55. Effect of failure to perform at fixed time, in
contract in which time is essential :-
When a party to a contract promises to do a
certain things at or before a specified time or certain
things at or before specified times and failed to do any
such thing at or before the specified time, the contract, or
so much of it as has not been performed, becomes
voidable at the option of the promise, if the intention of
the parties was that time should be of the essence of the
contract.”
Thus, the time is essence when a party to a contract promises to do a
certain things within a time stipulated in the contract.
20. Admittedly, the plaintiffs filed suit only on 24.01.2011. As
stated supra six months period, as per the agreement, was expired on
21.02.2010 itself. Therefore, the claim of the plaintiffs itself barred by
limitation. The defendants and the respondents 3 to 6 are entitled to
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rescind the contract as there was a breach of condition as time expired.
Therefore, the agreement for sale was breached due to the contact of the
plaintiffs who were failed to perform their part of contract as per the
agreement. Therefore, the plaintiffs are not entitled for the relief of
specific performance.
21. In any case, it is an admitted fact that the defendants had
received a sum of Rs.6,10,000/- as advance, as part of sale consideration.
Though there is no clause in the agreement, this Court is of the view, for
rendering complete justice between the parties, it deemed to be proper to
direct the defendants to repay the advance amount with interest.
22. Accordingly, the judgment and decree dated 27.12.2011
passed in O.S.No.12 of 2011 by the learned Additional District Judge,
Fast Track Court No.1, Salem, is hereby set aside and the suit in
O.S.No.12 of 2011 stands dismissed. The defendants/appellants are
directed to repay the advance amount of Rs.6,10,000/- with interest at the
rate of 7% per annum from the date on which the payment was made by
the plaintiffs, till date within a period of twelve weeks (12) from the date
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of receipt of a copy of this Order.
23. In the result, the Appeal Suit stands allowed. There shall be
no order as to costs.
07.12.2023
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
rts
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To
1. The Additional District Judge,
Fast Track Court No.1,
Salem.
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G.K.ILANTHIRAIYAN, J.
rts
07.12.2023
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