Madras High Court
Vimala vs Kandasamy ... 1St on 7 January, 2025
2025:MHC:4344
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 18.12.2024
Pronounced on 07.01.2025
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
S.A.No.837 of 2016 and
C.M.P.No.16331 of 2016
Vimala
... Appellant / 2nd Defendant
Vs.
1.Kandasamy ... 1st respondent / plaintiff
2.Veluchamy
3.Mayilathal
... Respondents 2 & 3 / defendants 4 & 5
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 22.11.2011 rendered
in A.S.No.167 of 2004 on the file of the Principal District Judge,
Coimbatore, confirming the decree and the judgment dated 30.01.2003
rendered in O.S.No.830 of 1990 on the file of the subordinate Judge,
Coimbatore.
For Appellant : Mr.S.Subbiah, Senior Counsel for
Mr.A.V.Arun for P.Raja
For Respondents : Mr.S.Mukunth, Senior Counsel for
Mr.B.Thirumalai for R1
No appearance for R2 and R3
JUDGMENT
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This Second Appeal has been filed to set aside the judgment and
decree dated 22.11.2011 rendered in A.S.No.167 of 2004 on the file of the
Principal District Judge, Coimbatore, confirming the decree and the
judgment dated 30.01.2003 rendered in O.S.No.830 of 1990 on the file of
the subordinate Judge, Coimbatore.
2. Heard Mr.S.Subbiah, learned Senior Counsel for the appellant and
Mr.S.Mukunth, learned Senior Counsel for R1 and perused the materials
available on record.
3. The second defendant is the appellant. The first respondent /
plaintiff has filed a suit seeking for a relief of specific performance against
the defendants 1 and 2. During the pendency of the suit, the first defendant
died and hence, her legal heirs have been impleaded as defendants 3 to 5.
The second defendant is a subsequent purchaser from the first defendant.
Therefore, she has also been impleaded as a party to the suit. The Trial Court
has decreed the suit and in the First Appeal preferred by the second
defendant, the First Appellate Court has dismissed the First Appeal and
confirmed the judgment and decree of the Trial Court. Aggrieved over the
same, the second defendant has preferred this Second Appeal.
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4. The brief facts stated in the plaint are as follows:
On 15.7.1987 the 1st defendant had entered into a sale agreement with
the plaintiff for a total sale consideration of Rs. 2,16,000/- and a sum of
Rs. 50,000/- has been paid as an advance amount to the 1st defendant by the
plaintiff and that has been stated in the agreement itself. The time to
complete the sale transaction has been agreed at 12 months. On the same day
when the sale agreement was entered, the plaintiff was put into possession
and the said fact has also been stated in the agreement. After taking
possession of the suit property, the plaintiff has converted the land into
house sites. The 2nd defendant is an adjacent owner of the suit property.
There is a public cart track having a width of 20 to 22 feet proceeding from
Maruthamalai Road through the 2nd defendant's land in Survey Nos. 157
and 158 and then through the suit property. The said cart track has been used
for the past 70 years.
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4.1. By coming to know about the sale agreement in favour of the
plaintiff, the 2nd defendant created troubles because she had already tried to
purchase the suit property from the 1st defendant. The 2nd defendant has
filed a suit against the 1st defendant in OS.No.1529 of 1987 before the Sub
Court in Coimbatore seeking the relief of permanent injunction against the
1st defendant, the plaintiff and others. Since the 2nd defendant has tried to
obstruct the cart track, the 1st defendant has also filed a suit in O.S.No.2703
of 1987 seeking the relief of permanent injunction. The plaintiff was
informed that the 1st defendant has settled the dispute with the 2nd
defendant. Therefore, the plaintiff was all along ready and willing to
purchase the suit property as per the sale agreement. But the 1st defendant
did not settle the dispute in respect of the suit property with the 2 nd
defendant and had not come forward to execute the sale deed. Therefore, the
plaintiff had sent a legal notice on 08.08.1989 calling upon the 1st defendant
to execute the sale deed. In the meanwhile, the 1st defendant had executed a
sale deed in favour of the second defendant unmindful of the sale agreement
in favour of the plaintiff. Hence, the plaintiff has filed the suit for specific
performance.
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5.The averments made in the written statement filed by the 2nd
defendant are as follows:
The suit sale agreement is a concocted one. The 1st defendant has
sold the suit property in favour of the 2nd defendant and hence, he did not
have any right to execute any sale agreement in favour of the plaintiff. The
first defendant executed a sale agreement of the suit property to the second
defendant on 05.04.1987 itself. The 2nd defendant is in possession and
enjoyment of the suit property in pursuant to the sale deed executed by the
1st defendant on 29.07.1989. The 1st defendant had executed a sale
agreement in favour of the second defendant even prior to the sale
agreement alleged to have been executed by her in favour of the plaintiff and
hence, this is a frivolous suit filed by the plaintiff.
6. The averments made in the written statements filed by the third
and fifth defendants are as follows:
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The suit sale agreement is not a genuine one. The 2nd defendant has
filed a suit against the 1st defendant in O.S.No.1529 of 1987 and the 1st
defendant has also filed a suit in O.S.No.2703 of 1987 against the second
defendant and both the suits are pending. The plaintiff did not have any
wherewithal to purchase the suit property. The 2nd defendant has purchased
the suit property on 29.07.1989 from the 1st defendant for a sale
consideration of Rs.1,00,000/-. However, she had paid only a sum of
Rs.50,000/-. For the balance sale consideration, the 2nd defendant's husband
had executed a promissory note in favour of the 1st defendant. But he did not
pay any amount in pursuant to the same.
7. During the course of the trial, on the side of the plaintiff, one
witness has been examined as PW.1 and Ex.A1 to Ex.A32 were marked. On
the side of the defendants, two witnesses have been examined as D.W.1 and
D.W.2 and Ex.B1 to Ex.B11 were marked.
8. After the conclusion of the trial and on considering the materials
available on record, the Trial Court has decreed the suit as prayed and the
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First Appeal preferred by the 2nd defendant before the First Appellate Court
was also dismissed by confirming the judgment and decree of the Trial
Court. Hence, the 2nd defendant has preferred this Second Appeal. While
admitting this Second Appeal, the following substantial questions of law
were framed for consideration:
"1. Whether the suit filed by the purchaser for specific
performance in respect to an agreement of sale having been
terminated by a written notice by the vendor, is
maintainable without a declaration that the termination of
the contract of sale is null and void?
2. When the suit was filed nearly after three years
from the date of the agreement of sale and when there was
no explanation whatsoever by the plaintiff for not filing the
suit for specific performance at the earlier point of time,
simply because the suit was filed within the period of
limitation, still, whether the plaintiff would be entitled to the
equitable relief of specific performance under Section 16(c)
of the Specific Relief Act?
3. Whether the Courts below are justified in granting
the discretionary relief for specific performance based on
agreement dated 15.07.1987 marked as Ex.A1 when
admittedly the said agreement was cancelled by the owners
of the land by sending notice dated 19.02.1989 marked as
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Ex.A24, especially, in the absence of any challenge to such
cancellation made by the agreement holder?"
9. The learned Senior Counsel for the appellant / second defendant
submitted that the 1st defendant has already issued a legal notice to the
plaintiff after the expiry of the 12 month time limit agreed upon in the sale
agreement, stating that the plaintiff's advance money would be forfeited in
view of his failure to pay the balance sale consideration and get the sale deed
executed. Since the sale agreement itself got cancelled, the decree cannot be
granted in favour of the plaintiff. Even the decree has been granted only
against the defendants 3 to 5 and not against the 2nd defendant in whose
favour the 1st defendant had executed the sale deed even prior to the filing of
the suit. The decree will not bind the interest of the 2nd defendant, who was
the rightful owner at the time when the suit was filed. Even though the
defendants 3 to 5 executed a sale deed in favour of the plaintiff subsequent
to the decree passed in the suit, that will not take away the right of the 2nd
defendant over the suit property as the Court has not passed any decree
against her though she was a party to the proceedings.
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10. The learned Senior Counsel for the first respondent / plaintiff
submitted that the sale agreement in favour of the plaintiff was executed by
the first defendant on 15.07.1987. Thereafter, the second defendant has
created a sale agreement by using the old stamp papers in the name of the
second defendant by putting the date of execution of the sale agreement as
05.04.1987 in order to create a make belief that the sale agreement in favour
of the second defendant was executed prior to the sale agreement in favour
of the plaintiff. The second defendant is not a bonafide purchaser. In the
earlier suit filed by the second defendant for seeking the relief of injunction
against the first defendant, she has admitted her knowledge about the sale
agreement in favour of the plaintiff. Further, the second defendant did not
come to the witness box and subjected herself for examination. The first
defendant did not file any written statement when she was alive and the first
defendant's legal heirs who are D3 to D5 have filed their written statements,
wherein, they also did not raise any point as to cancellation of the sale
agreement or that the suit is not maintainable in view of the cancellation of
the sale agreement.
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11. The learned Senior Counsel further submitted that just because the
decree has not been passed by binding the second defendant, the plaintiff is
not deprived to get the benefit of the decree because the second defendant
can at the best claim right only through the 1st defendant. Since the decree
has been passed binding the legal heirs of the 1st defendant [defendants 3 to
5] the sale deed in favour of the 2nd defendant can be ignored.
12. The learned Senior Counsel for the appellant further submitted
that no issue has been framed by the Trial Court whether the plaintiff is
ready and willing to perform his part of contract. Without rendering any
finding on this aspect the decree for specific performance cannot be granted.
The time for performance is agreed at 12 months. The plaintiff did not
perform his part of contract and thereafter, the 1st defendant has given a
legal notice terminating the contract. The plaintiff himself has admitted that
he has got the knowledge about the sale deed executed in favour of the 2nd
defendant within a week of its execution.
13. The suit has been based upon the sale agreement executed by the
first defendant in favour of the plaintiff on 15.07.1987. Even though the
second defendant who is the appellant herein has denied the execution of the
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sale agreement, the party to the sale agreement viz., the first defendant did
not deny the same. The second defendant also taken a stand that Ex.A1 sale
agreement has been cancelled by the first defendant through a legal notice
dated 19.02.1989. When the party to the sale agreement herself has admitted
the sale agreement and subsequently sent a notice (Ex.A24) for cancelling
the sale, it cannot lie in the mouth of the second defendant to state that the
sale agreement is not true.
14. Though the first defendant is a party to the sale agreement
between herself and the plaintiff, she is not a contesting party. The second
defendant alone is contesting this Second Appeal against the plaintiff. Since
the second defendant has purchased the suit property subsequent to the sale
agreement Ex.A1, has impleaded the first defendant also as a party to the
proceedings. However, the second defendant has raised a point that the
plaintiff has filed the suit without seeking the relief to set aside the sale deed
dated 29.07.1989 executed by the first defendant in favour of the second
defendant.
15. In the judgment of this Court reported in 2020 (1) MWN 540, in
the case of A.Maheswari and Others Vs. R.Balasubramaniam and Others,
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this Court has referred to the judgment of the Full Bench of the Hon'ble
Supreme Court in the case of Lala Durga Prasad and another Vs. Lala
Deep Chand and Others, reported in AIR 1954 SC 75. In Lala Durga
Prasad case, the Hon'ble Supreme Court has held that in the suit filed for
specific performance by the plaintiff, if there is an alienation of the property
after the agreement but prior to the suit, the plaintiff need not seek the relief
to set aside the subsequent alienation in the suit filed for specific
performance against the vendor. As the law is well settled on this point, it is
wrong on the part of the appellant to claim that the plaintiff ought to have
filed a suit for specific performance along with the relief of declaration as to
the sale deed dated 29.07.1989 (Ex.A25).
16. The next argument advanced by the learned counsel for the
appellant is that even prior to the filing of the suit, the party to the sale
agreement viz., the first defendant has issued a legal notice to the plaintiff by
stating that the plaintiff did not come forward to finish the sale as agreed in
the sale agreement and hence, he is terminating the contract. It is submitted
by the learned Senior Counsel for the plaintiff that the first defendant cannot
terminate the contract as the plaintiff was all along ready and willing to
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perform his part of contract. Unfortunately in the suit filed for specific
performance, the Trial Court has not framed a specific issue as to the
readiness and willingness on the part of the plaintiff in performing his part of
contract. Even the First Appellate Court had omitted to take note of the
above fact. The Courts below had focused on the sale agreement alleged to
have been executed in favour of the second defendant by the first defendant
even prior to Ex.A1 sale agreement in favour of the plaintiff.
17. The learned Senior Counsel for the plaintiff submitted that the old
stamp paper which was purchased in the name of the second defendant has
been made use to create the sale agreement dated 05.04.1987 (Ex.B2) just in
order to pretend that the first defendant had already executed the sale
agreement in favour of the second defendant even before her agreement with
the plaintiff. It is for the first defendant to state whether she had executed the
sale agreement in favour of the plaintiff earlier in point of time. The Trial
Court has made an observation that in the additional written statement filed
by the legal heirs of the deceased first defendant, they have admitted about
the execution of the sale agreement in favour of the plaintiff even before the
sale agreement executed in favour of the second defendant.
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18. It might be true that the old stamp papers have been used for the
purpose of creating the sale agreement in favour of the second defendant to
create a picture that the first defendant had executed the sale agreement with
the second defendant prior to her sale agreement with the plaintiff. But the
plaintiff has to prove his case on his own materials and merit that he is
entitled to the relief of specific performance. The relief of specific
performance being an equitable relief, it cannot be granted just because the
plaintiff had proved that the sale agreement Ex.A1 is true and valid.
19. The appellant / second defendant has claimed that time was the
essence of the sale agreement and that the plaintiff did not come forward to
execute his part of contract by paying the balance sale consideration and
allowed the first defendant to issue notice Ex.A24 to terminate the contract.
As the plaintiff did not come forward to execute the sale deed, the first
defendant has issued a legal notice (Ex.A24) stating that the sale agreement
in favour of the plaintiff gets cancelled in view of his indifference in
complying the terms of contract. The plaintiff received the notice, but he did
not send any reply. So it is claimed by the second defendant that even if the
sale agreement in favour of the plaintiff is true, it got cancelled before the
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sale deed Ex.A25 dated 29.07.1989 was executed in favour of the second
defendant.
20. In fact, the second defendant had claimed that the plaintiff ought
to have filed a suit by including the prayer for declaration that the
cancellation of the sale agreement Ex.A1 by the first defendant is null and
void before claiming the relief for specific performance. Since the plaintiff
believed that he had the right to seek the relief of specific performance, he
had filed a suit for seeking the same relief. It is for the second defendant to
disprove the claim of the plaintiff in case the plaintiff proves his entitlement.
So the second defendant cannot plead that the sale agreement Ex.A1 in
favour of the plaintiff got cancelled in pursuant to Ex.A24 legal notice.
21. Even the plaintiff also denied the fact of receiving the legal notice
Ex.A24. Until 08.08.1989, the plaintiff did not choose to send any reply
notice to the legal notice of the first defendant. The legal notice sent by the
plaintiff to the first defendant was on 08.08.1989 and it has been marked as
Ex.A26. The legal notice was sent by the plaintiff after he came to know that
a sale deed has been executed by the first defendant in favour of the second
defendant. However, it cannot be strictly stated that the plaintiff's right to
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maintain the suit for specific performance is available to him only if he seeks
a relief for declaring the cancellation of the sale agreement by the first
defendant as null and void. The plaintiff has got a paramount duty to prove
that he has been all along willing to perform his part of contract and that he
is entitled to the relief of specific performance within the context of Section
16(c) of the Specific Relief Act.
22. The legal notice has been sent by the first defendant to the plaintiff
on 19.02.1989 stating that the plaintiff did not come forward to perform his
part of contract. But the plaintiff did not send any reply. So the first
defendant was at liberty to presume that the plaintiff has lost his interest in
getting the sale deed executed and proceed to find out some other purchaser.
It appears that the first defendant had found the second defendant as a
potential buyer and sold the suit property in her favour on 29.07.1989.
23. Immaterial of the fact whether the second defendant had her sale
agreement even prior to the sale agreement in favour of the plaintiff, the fact
remains that the sale agreement in favour of the second defendant came to be
executed only after the first defendant has sent a legal notice to the plaintiff
to cancel the sale agreement executed in his favour. Between the period from
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19.02.1989 on which date the first defendant sent a legal notice Ex.A24 to
the plaintiff till the legal notice sent by the plaintiff on 08.08.1989, the
plaintiff was indifferent about the completion of the sale transaction. In other
words, the conduct of the plaintiff is such a way that he had lost his interest
in getting the sale deed executed. As the relief for specific performance
revolves around the proof of an important fact that the plaintiff was all along
ready and willing to perform his part of contract, the argument advanced on
the side of the appellant that the plaintiff ought to have claimed a relief for
declaration that the termination of the sale agreement is null and void cannot
be of any significance. In view of the above cited reasons, the judgments
cited by the learned Senior Counsel for the plaintiff to fortify the point that
the plaintiff need not seek the relief of declaration that the termination of the
agreement is void, are not necessary.
24. Admittedly, the Trial Court did not frame an issue as to the
readiness and willingness on the part of the plaintiff to perform his part of
contract. Apart from the conduct of the plaintiff that he remains silent after
receiving the legal notice dated 19.02.1989 till 08.08.1989 when he sent
Ex.A26 legal notice, the evidence of the plaintiff also would reveal that even
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after giving Ex.A24 notice he did not proceed to file a suit for specific
performance and delayed it for 10 months. P.W.1 has given a categorical
evidence that he did not have any reason for causing delay. Even though the
suit for specific performance filed by the plaintiff was within a period of
limitation that alone will not entitle the plaintiff to get the relief of specific
performance. Because his evidence would reveal that he could get the copy
of the sale deed dated 29.07.1989 in favour of the second defendant within
10 days from the date of execution. Hence, there is no reason to wait and
watch for nearly one year without filing any suit for specific performance.
25. The only reason which was stated by the plaintiff in his evidence
was that after receiving notice from the first defendant, he waited and met
the first defendant in person and she had agreed to execute the sale deed. But
these facts were not pleaded by the plaintiff in his suit. The plaintiff has
stated that there was a dispute as to the contract in view of the objections
raised by the second defendant. Hence, he was requesting the first defendant
to settle the dispute before entering into a sale transaction.
26. Despite the plaintiff insisted to settle the dispute about cart track
with the second defendant, no interest was shown by the first defendant. The
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suit filed by the first defendant in this regard against the second defendant
was in the year 1987 before the District Munsif, Coimbatore in O.S.No.2703
of 1987. The suit filed by the second defendant against the first defendant in
this regard was also of the year 1987 in O.S.No.1529 of 1987. So the legal
notice sent by the first defendant vide Ex.A24 dated 19.02.1989 was much
later than the above said pending suits.
27. When the first defendant has categorically stated in the legal
notice that the time is the essence of contract and advance amount paid by
the plaintiff will be forfeited, the first defendant did not come forward to get
the sale deed executed, any reasonable person in the place of the plaintiff
would have immediately sent a reply notice by stating that pending litigation
was the reason for the delay. But the plaintiff did not care to sent any legal
notice and his conduct would only show that he had lost interest in getting
the sale done in his favour by the first defendant.
28. After the plaintiff sent the legal notice, he did not file a suit
immediately. But he was waiting for nearly 10 months knowing pretty well
that the second defendant had already acquired title through the sale deed
executed by the first defendant in favour of the second defendant. Even
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though the plaintiff has raised a plea that the second defendant is not a
bonafide purchaser, that argument would arise only if there is a legally
enforceable sale agreement is in subsistence between the plaintiff and the
first defendant and during that course, without knowing the existence of the
sale agreement, the second defendant purchased the suit property. But the
facts and materials available in this case would only show that the plaintiff
has lost his interest and the first defendant also conveyed her intention that
she is not going to sell the suit property to the plaintiff as he did not come
forward within the specific time limit by sending Ex.A24 legal notice.
29. Since the first defendant herself has ignored the sale agreement in
favour of the plaintiff because the same was terminated by her, the second
defendant need not prove that she was a bonafide purchaser and it is enough
for her to prove that she is a purchaser of the suit property. Even though the
second defendant might know the sale agreement executed in favour of the
plaintiff, she has every reason to proceed and get the sale deed executed in
her favour because the first defendant had cancelled the sale agreement by
sending a legal notice to the plaintiff. On the other hand, the plaintiff has got
the bounden duty to prove that he was all along ready and willing to perform
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his part of contract, but it was the first defendant who did not come forward
to execute the sale deed.
30. Firstly, the plaintiff ignored the legal notice sent by the first
defendant vide Ex.A24 and secondly, he was waiting for more than one year
to file a suit even after he sent Ex.A26 notice to the first defendant after he
came to know about the sale deed executed in favour of the second
defendant. Except the pending litigation, the plaintiff had not stated any
other reason and even the reason of pending litigation was also not quoted as
a reason for finishing the sale transaction by sending any reply notice by the
plaintiff to the first defendant.
31. In the above circumstances, the second defendant did not have the
burden to prove that she is a bonafide purchaser. The Courts below ought to
have adverted the readiness and willingness on the part of the plaintiff to
perform his part of contract and that he proved his continuous readiness.
Without any reasons, the plaintiff had waited for nearly one year for filing
the suit after he sent the legal notice Ex.A26. The conduct exhibited by the
plaintiff after receiving the legal notice from the first defendant and the
reasonable delay he made after he sent a legal notice to the first defendant
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vide Ex.A26 would only show that the plaintiff has lost his interest in getting
the sale deed executed in his favour. As the plaintiff had failed to prove his
readiness and willingness in term of Section 16(c) of the Specific Relief Act,
the Courts below ought not to have granted the equitable relief of specific
performance.
32. In this regard, it is appropriate to cite the judgment of the Hon'ble
Supreme Court held in the case of His Holiness Acharya Swami Ganesh
Dassji Vs. Sita Ram Thapar, reported in (1996) 4 SCC 526. In the said
case, the Hon'ble Supreme Court has held that the factum of readiness and
willingness on behalf of the plaintiff to perform his part of contract is to be
adjudged with reference to the conduct of the party and the attending
circumstances. The Court may infer from the facts and circumstances
whether the plaintiff was ready and was always ready and willing to
perform his part of contract.
33. In the instant case, from the conduct of the plaintiff as well as the
circumstances and the fact proved before the Trial Court, the Court ought to
have arrived at a conclusion that the plaintiff was not ready and willing to
perform his part of contract. The readiness and willingness on the part of the
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plaintiff has to be proved as per Section 16(c) of the Specific Relief Act. The
position of law in this regard remains constant prior and subsequent to the
amendment of Specific Relief Act. The above position has been confirmed
by the judgment of the Division Bench of this Court held in the case of
Elango Vs. K.Kamalaveni (died) and 16 others, reported in 2023 (2) CTC
535. In the said judgment, the Division Bench of this Court has held that the
plaintiff has to lead a credible evidence that he is entitled to the relief of
specific performance and that he was always ready and willing to perform
his part of contract. In fact, it is held that even if the defendants remained
absent, the plaintiff has got the duty to establish the readiness and
willingness. In this regard, paragraph Nos.20, 21 and 22 of the above
judgment are extracted hereunder:
"20. It is strenuously argued by the learned Senior
counsel for the plaintiffs that the defendants have taken
contradictory pleas and having denied the suit sale
agreement itself in entirety it was not really incumbent on
the plaintiffs to prove 'readiness and willingness' and she
further contended that in any event the plaintiffs have
pleaded that they are always ready and willing to perform
their part of contract not only in the plaint but also in the
pre-suit notices exchanged between the parties.
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21. This Court is unable to find any force in the
submissions made by the learned counsel for the
plaintiffs/respondents. Even in a case where the defendants
remain ex-parte, the Court would not automatically grant a
decree for specific performance in favour of the plaintiffs.
The plaintiffs are bound to establish that they were always
ready and willing to perform their part of the essential
terms of the contract/agreement of sale. It is not sufficient
compliance of the law to merely state and plead that the
plaintiffs were always ready and willing.
22. A reading of Sec. 16 (c) extracted herein above,
clearly shows that it is not only a question of pleading but
also proof of such readiness and willingness, which is
material and mandatory for a plaintiff seeking the
discretionary relief of specific performance before the
Court of Law. Infact, Sec.16 (c) of the Act has been
amended by Act 18 of 2018 w.e.f 01.10.2018 and after the
amendment, in Sec.16 (c), the legislature has omitted the
requirement of pleading by removing the words 'to aver”.
Even though the amendment Act would not apply to the
facts of the present case, yet it is referred to for the reason
that the legislature has continued to insist on proof of
'readiness and willingness'. Therefore, prior to the
amendment as well as post the amendment of Sec.16(c) the
requirement to establish and prove 'readiness and
willingness' is not done away with. On the other hand, such
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proof is sine qua non for a plaintiff to become entitled to the
relief of specific performance which is an equitable and
discretionary one."
34. As the relief of specific performance is an equitable relief, the
Courts below ought to have weighed the equitable circumstances in a fair
and proper manner. As the Courts below had omitted to do the above
exercise by not properly evaluating the readiness and willingness on the part
of the plaintiff and proceeded to grant the relief of specific performance to
the plaintiff, the second substantial question of law is answered in favour
of the appellant / second defendant.
35. As the above substantial question of law has been answered in
favour of the appellant and which has a bearing on the result of the suit, the
substantial questions of law Nos.1 and 3 would loose significance even if
those legal positions might not be in favour of the second defendant. Since
the plaintiff has not proved his readiness and willingness and the second
substantial question of law in this regard has been answered in favour of the
appellant / second defendant, the judgment and decree of the First Appellate
Court and the Trial Court are liable to be set aside.
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36. In the result, this Second Appeal is allowed and the judgment and
decree dated 22.11.2011 made in A.S.No.167 of 2004 by the Principal
District Judge, Coimbatore is modified to the extent of decreeing the suit by
granting the alternate relief of refund of the advance amount of Rs.50,000/-
to the plaintiff along with interest at the rate of 9% from the date of filing of
the suit till the date of realization by the defendants 3 to 5 from the estates of
the first defendant inherited by them. Time for payment is one month from
the date of receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petition is closed.
07.01.2025
Speaking order
Index : Yes
Neutral Citation : Yes
gsk
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R.N.MANJULA, J.
gsk
To
1.The Principal District Judge,
Coimbatore.
2.The subordinate Judge,
Coimbatore.
S.A.No.837 of 2016 and
07.01.2025
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