Madras High Court

Ayyasami Udayar vs Kumar on 28 February, 2025

Author: R. Hemalatha

Bench: R.Hemalatha

                                                                                             S.A.No.780 of 2018



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 28.02.2025

                                                             CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                    S.A.No.780 of 2018


                     Ayyasami Udayar                                                      ... Appellant

                                                                 Vs.

                     1. Kumar
                     2. Jayabal
                     3. Angayee
                     4. Priya                                                             ... Respondents


                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 23.06.2006 passed in A.S. No.10 of 2006,
                     on the file of the Additional District Court (Fast Track Court-III),
                     Vridhachalam, upholding the decree and judgment dated 04.04.2005
                     passed in O.S.No.84 of 2004, on the file of the Additional Sub Court,
                     Vridhachalam.

                                    For Appellant              : Mr.C.Prabakaran
                                                                   for Mr.V.Anand
                                    For RR1, 3 and 4           : Mr.T.Murugamanickam
                                                                  Senior counsel
                                                                  for Mr.Sathya


                     Page 1 of 13

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                                                                                          S.A.No.780 of 2018




                                                        JUDGMENT

The unsuccessful plaintiff before both the Courts below has

filed the present second appeal. The plaintiff filed the suit for specific

performance of contract dated 08.04.2002 (Ex.A1) or in the alternative to

refund the advance amount paid by him to the defendants 1 to 3 together

with interest.

2. For the sake of convenience, the parties are referred to as per

their rank in the trial court and at appropriate places, their rank in the

present second appeal would also be indicated.

3. The case of the plaintiff in a nutshell is as follows :

The suit properties belong to the joint family of the defendants

1 to 7. The defendants 1 to 3 agreed to sell the suit properties in favour of

the plaintiff for a sale consideration of Rs.1,50,000/-. Accordingly, the

sale agreement was entered into between the plaintiff and the defendants

1 to 3 on 08.04.2002 (Ex.A1) and a sum of Rs.1,25,000/- was paid

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towards advance by the plaintiff. The time for payment of the balance

sale consideration of Rs.25,000/- was fixed as two years. The plaintiff

was always ready and willing to perform his part of the contract and he

requested the defendants 1 to 3 to execute the sale deed. Since the

defendants 1 to 3 started evading, the plaintiff issued a legal notice dated

27.03.2004 (Ex.A2) to them to execute the sale deed on or before

07.10.2004. However, the defendants 1 to 3 did not send any reply. On

the other hand, the defendants 4 and 5 in their reply notice (Ex.A8) have

contended that since they have 1/7th share each in the suit properties, the

sale agreement executed by the defendants 1 to 3 would not bind them.

They have also contended that the suit properties are worth more than

Rs.7,00,000/- and that there was no necessity to sell the suit properties in

favour of the plaintiff. According to the plaintiff, the above contention of

the defendants 4 and 5 are totally false. Hence the suit.

4. The defendants 1 to 3, 5 and 6 remained absent and were set

ex parte. The suit was resisted by the fourth defendant on the following

grounds:

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i. The defendants 1 to 3 have not executed any sale agreement in

favour of the plaintiff.

ii. The suit properties is a joint family properties and all the

defendants have equal shares. Hence, the defendants 1 to 3 do not

have any right to enter into a sale agreement with the plaintiff.

iii. The first defendant was not a Manager / Karta of the joint family

consisting of the defendants 1 to 7.

iv. In fact there was no necessity for alienating the suit properties for

a sum of Rs.1,50,000/- which is worth Rs.7,00,000/-.

5. An Advocate was appointed as court guardian for the

seventh defendant as he happened to be a minor. In his written statement,

he had reiterated the contentions of the fourth defendant.

6. On the basis of the above pleadings, the trial Court framed

the following issues:

"i. Whether the sale agreement dated 08.04.2002 is executed by the defendants 1 to 3 ?

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ii. Whether the defendants can be directed to execute the sale deed as per the sale agreement dated 08.04.2002 ?

iii. Whether the sale agreement dated 08.04.2002 is not binding on the defendants 4 to 7?

iv. Whether the suit is barred by limitation ?

v. Whether the plaintiff is entitled to a decree for specific performance for refund of Rs.1,50,000/- with interest ? vi. To what relief, the plaintiff is entitled?

7. In the trial Court, the plaintiff examined herself and one

another witness and marked Ex.A1 to Ex.A8. The fourth defendant

examined himself. However, no documentary evidence was adduced on

the side of the fourth defendant.

8. The learned trial court judge, after analysing the oral and

documentary evidence on record, vide his decree and judgment dated

04.04.2005, dismissed the suit filed by the plaintiff with regard to the

specific performance of contract. However, the trial court directed the

defendants 1 to 3 to refund a sum of Rs.1,55,792/- together with interest

at the rate of 6% per annum from the date of plaint till the date of

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realization. The trial court also created a charge over the properties of the

defendants 1 to 3 for prompt repayment of decreetal amount.

9. Aggrieved over the decree and judgment passed by the trial

court judge, the plaintiff filed an appeal in A.S. No.10 of 2006 before the

Additional District Court (Fast Track Court-III), Vridhachalam. The

learned Additional District Judge (Fast Track Court-III), Vridhachalam,

after analysing the oral and documentary evidence on record, upheld the

findings recorded by the trial court judge vide his decree and judgment

dated 23.06.2006, as against which the present second appeal is filed.

10. At the time of admission the following substantial

questions of law were framed by my learned predecessor :

"(1)Whether the Courts below are correct in Law in dismissing the suit with reference to specific performance and ordering only the alternative relief without considering, that as per Section 15 of the Specific Relief Act, 1963, Specific Performance order against the respondents 1 to 3 who have signed the suit Agreement in

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Ex.A.1?

(2)Whether the Courts below are correct in Law in not creating a charge over the entire properties in Ex.A.1, as the defendants 4 to 7 have not proved that they have a share in the suit property subject matter of Ex.A.17?”

11. Heard Mr.V.Anand, learned counsel for the appellant and

Mr.T.Murugamanickam, learned senior counsel assisted by Mr.Sathyan,

learned counsel for the respondents 1, 3 and 4.

12. It is an admitted fact that the suit properties are joint family

properties of the defendants 1 to 7. The defendants 1 to 3 have alone

executed the sale agreement in favour of the plaintiff. The trial court

dismissed the suit on the ground that since all the sharers have not jointly

executed the sale agreement in favour of the plaintiff, he cannot seek the

relief of specific performance of contract. Mr.V.Anand, learned counsel

for the appellant relied on the decision of the Hon'ble Supreme Court in

Surinder Singh vs. Kapoor Singh (Dead) through legal heirs and

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others reported in (2005) 5 SCC 142 and contended that a decree of

specific performance of contract can be granted in favour of the appellant

in respect of the share of the defendants 1 to 3.

13. It is appropriate to extract Section 12 (2) of the Specific

Relief Act, 1963

"12. Specific performance of part of contract.— (1)................................

(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 performance of so much of the contract as can be performed, and award compensation in money for the deficiency."

"It is well established principle of equity that where, in the course of concluding a contract, a person has represented that he can grant a certain property, or is entitled to a certain interest in that property, and it later appears that there is a deficiency in his title or interest, the other party can obtain an

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order compelling him to grant what he has got, and in an appropriate case, to submit to a reduction of the consideration for the grant"

14. However, in the instant case the plaintiff did not implead

the defendants 1 to 3 as parties in the first appeal in A.S.No.10/2006 and

only the defendants 4 to 7 have been shown as parties. Even in the

present second appeal the defendants 1 to 3 have not been shown as

respondents. In the circumstances, the plaintiff cannot seek for a specific

performance of contract in respect of the shares of the defendants 1 to 3.

15. Mr.T.Murugamanickam, learned Senior Counsel for the

respondents 1, 3 and 4 relied on the following decisions:

a) Pemmada Prabhakar and Others vs Youngmen's Vysya

Association and Others reported in (2015) 5 SCC 355 ;

b) Balmukand vs Kamla Wati and Others reported in 1964 SCC

Online SC 167 ;

and contended that when the other sharers of the suit properties have not

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executed the agreement of sale, the said agreement of sale dated

08.04.2002 is not enforceable in law in view of Section 17 of the Specific

Relief Act.

16. The provisions of Section 17 of the Specific Relief Act

expressly states that the contract to sell or let any immovable property

cannot be specifically enforced in favour of a vendor or lessor, who does

not have an absolute title and right upon the properties. It is relevant to

extract Section 17 of the Specific Relief Act, 1963 which reads as under :

"17. Contract to sell or let property by one who has no title, not specifically enforceable.—

(1)A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor—

(a)who, knowing not to have any title to the property, has contracted to sell or let the property;

(b)who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or

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lessee a title free from reasonable doubt.

(2)The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property."

17. In view of the provisions of the Section 17 of the Specific

Relief Act, the agreement of sale entered into between the plaintiff and

some of the co-sharers who do not have absolute title to the schedule

property is not enforceable in law. Apart from that, the appellant has not

also impleaded the defendants 1 to 3 either in the first appellate court or

in the present second appeal and therefore, the plaintiff's claim in respect

of the defendants 1 to 3 cannot be granted. Therefore, the substantial

questions of law are answered against the appellant.

18. In the result,