The judgment and decree dated 16.07.2008 passed in Appeal Suit No.258 of 2004 by the Additional Subordinate Court, Dindigul are now under challenge.
2.The respondents herein as plaintiffs have instituted Original Suit No.165 of 1998 on the file of the Principal District Munsif Court, Dindigul, for the reliefs of specific performance, damages and also for recovery of money with interest, wherein the present appellants have been shown as defendants.
3.It is averred in the plaint that the suit property is the absolute property of the first defendant. The second and third defendants are the daughters of the first defendant. The first defendant has agreed to sell the suit property in favour of the plaintiffs for a sum of Rs.21,000/- and received Rs.3,000/- by way of advance and the terms of agreement have been reduced into writing on 22.11.1990 and on the basis of the instruction given by the first defendant, the defendants 2 & 3 have also been included in the suit sale agreement. It is agreed by the defendants 1 to 3 that they should receive balance of sale amount and register a sale deed in favour of the plaintiffs within six months. The defendants 1 to 3 have also agreed to give possession of the suit property without any encumbrance. The first defendant has informed that the suit property is in possession of her husband, mother-in-law and the second wife of her husband and their son at the time of execution of sale agreement. Since possession of the suit property has to be recovered, the first defendant has demanded further extension of time, till actual possession of the suit property. The first defendant has demanded further payments of sale consideration. On 19.11.1990, the first defendant has received Rs.3,000/- and likewise, on 16.12.1990, 15.04.1991 and 17.09.1991, the first defendant has received Rs.1000/-, 3,000/- & 2500/- respectively. The first defendant has represented that she is going to file a civil suit against the persons who are enjoying the suit property and on 22.03.1992 she has received Rs.3,825/- and subsequently on 18.09.1992, she has received Rs.3,000 and on 24.07.1996, 25.07.1996, 29.07.1996 and on 21.04.1997, the first defendant has received Rs.1,800/-, 1,300/-, 1,000/- & 1,000/- respectively. The first defendant has filed a civil suit in Original Suit No.551 of 1992 against her husband and others so as to recover possession of the suit property and ultimately got favourable decree on 18.11.1997. The plaintiffs have sent a legal notice to the defendants 1 to 3 and thereby demanded execution of registered sale deed. The defendants 1 to 3 have received the same and sent a reply notice on 27.01.1998. Even after receipt of notice, the defendants 1 to 3 have not come forward to execute a sale deed in favour of the plaintiffs. The plaintiffs have paid excess amount of Rs.425/-. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
4.In the written statement filed on the side of the first defendant, it is stated that the suit property is originally belonged to one Vellaiammal, mother-in-law of the first defendant and she executed a settlement deed in favour of the first defendant on 04.12.1959 and therefore, the first defendant has become absolute owner of the suit property. The husband of the first defendant has lived in the suit property along with his second wife and their son. It is true that the defendants 1 to 3 have agreed to sell the suit property in favour of the plaintiffs on 22.11.1990. It is false to say that the first defendant after execution of sale agreement has received part of sale consideration on various occasions from the plaintiffs. The first defendant is an uneducated and her thumb impressions have been surreptitiously introduced in the present case. The suit sale agreement has become time barred. On 05.11.1997 the defendants 1 to 3 have executed a sale deed in favour of the 7th defendant and thereby received Rs.22,000/-. Since the suit sale agreement has become time barred, the plaintiffs are not entitled to get the reliefs sought for in the plaint and therefore, the present suit deserves dismissal.
5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiffs as appellants have filed Appeal Suit No.258 of 2004 on the file of the first appellate Court.
6.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal in part, whereby and whereunder set aside the judgment and decree passed by the trial Court and consequently decreed the suit in part. Against the judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendants as appellants.
7.On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration; "a) Is the conclusion of the first appellate Court that the suit is not barred by limitation basing on Ex.A4 and the disputed endorsements in Exs.A2 & A3 and also when such a case is beyond the terms as embodied in the suit agreement in Ex.A1, is sustainable in law especially in view of
Section 91 and
92 of the Indian Evidence Act and in the absence of any independent evidence to support the same except the ipsi dixit of PW1?
b)Whether the first appellate Court is correct and justified in granting an equitable and discretionary relief of specific performance when the plaintiff has come to Court after 8 years and when the first appellate Court itself has found the case of the plaintiffs regarding payment of balance of consideration to be false and the endorsements unproved?
c)Whether the judgment and decree of the first appellate Court reversing the well considered findings of the trail Court without giving reasons as to how the trial Court was wrong and based on its own reasoning and on the basis of a case not established by plaintiffs, sustainable in law?
d)Is not the judgment of the first appellate Court granting a relief of specific performance as prayed for even after having found that the endorsements to the extent of Rs.11,925/- for the balance of consideration to be unproved, erroneous and suffers from non-application of mind warranting interference in second appeal?"
8.As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits on the basis of rival submissions made by either counsel at the stage of admission.
9.Before contemplating the rival submissions made by either counsel, it would be more useful to look into the following admitted facts;
It is an admitted fact that the suit property is the absolute property of the first defendant. It is also equally an admitted fact that the first defendant has agreed to sell the suit property in favour of the plaintiffs for a sum of Rs.21,000/- and to that extent the plaintiffs as well as defendants 1 to 3 have entered into suit sale agreement dated 22.11.1990. On the date of suit sale agreement, the defendants 1 to 3 have received a sum of Rs.3,000/- by way of advance.
10.The specific contentions of the plaintiffs are that after execution of suit sale agreement, the first defendant has received part of sale consideration on various dates and finally, she represented that the suit property is in possession and enjoyment of her husband and others and since possession of the suit property has not been recovered from them, she and others have not been able to execute a sale deed in favour of the plaintiffs as agreed in the suit sale agreement and subsequently, she has filed Original Suit No.551 of 1992 against her husband and others so as to recover possession of the suit property and the same has been decreed in her favour and since the defendants 1 to 3 have failed to execute a sale deed in favour of the plaintiffs, the plaintiffs have constrained to issue a legal notice dated 18.11.1997 and the defendants 1 to 3 even after receipt of the same has failed to execute a sale deed in favour of the plaintiffs. Under the said circumstances, the present suit has been instituted.
11.Per contra, it has been contended on the side of the contesting defendants that the suit sale agreement has come into existence on 22.11.1990 wherein six months time for execution of sale deed has been given and the same expired on 22.05.1991 and from 22.05.1991, a suit should be filed on or before 22.05.1994 and it is false to say that the first defendant on various occasions has received part of sale consideration from the plaintiffs and made endorsements to that effect and therefore, the present suit is barred by limitation and since the present suit is barred by limitation, the plaintiffs are not entitled to get the reliefs sought for in the plaint.
12.The trial Court, has dismissed the suit mainly on the ground that the endorsements alleged to have been made by the first defendant have not been proved on the side of the plaintiffs. But, the first appellate Court has rejected the conclusion arrived at by the trial Court and ultimately decreed the suit in part.
13.The only point that comes up for consideration in the present second appeal is as to whether the plaintiffs are entitled to get the relief of specific performance in view of suit sale agreement dated 22.11.1990.
14.The learned counsel appearing for the appellants/defendants has repeatedly contended that both the plaintiffs and defendants 1 to 3 have entered into suit sale agreement on 22.11.1990 and the defendants 1 to 3 have agreed to sell the suit property for a sum of Rs.21,000/- and on the date of execution of suit sale agreement, they have received Rs.3,000/- by way of advance and subsequently, neither the first defendant nor the remaining defendants has had received any amount from the plaintiffs and therefore, all the endorsements alleged to have been made by the first defendant are nothing but concoctions and the same have also not been proved on the side of the plaintiffs and further the plaintiffs are not ready and willing to perform their part of contract in pursuance of sale agreement dated 22.11.1990 and the trial Court, after evaluating all the evidence available on record, has rightly dismissed the suit, but the first appellate Court without considering the lapses as well as infirmities found on the side of the plaintiffs, has erroneously decreed the suit in part and therefore, the judgment and decree passed by the first appellate Court are liable to be interfered with.
15.In order to repudiate the argument advanced by the learned counsel appearing for the appellants/defendants, the learned counsel appearing for the respondents/plaintiffs has also equally contended that the suit sale agreement has come into existence on 22.11.1990 and of-course it is true that in the suit sale agreement, the period of execution of sale deed has been fixed as six months, but, in the suit sale agreement, it has been agreed to the effect that at the time of execution of sale deed, possession of the suit property must be handed over to the plaintiffs and since the husband of the first defendant and his second wife and their son have enjoyed the suit property at the time of execution of suit sale agreement, both the plaintiffs and defendants 1 to 3 have not been able to act in terms of suit sale agreement and the first defendant on various dates has received part of sale consideration from the plaintiffs and to that effect she has made endorsements and therefore, both the plaintiffs and defendants 1 to 3 have not strictly followed the time mentioned in the suit sale agreement and in the present case, time is not essence of contract and even though sufficient evidence have been let in on the side of the plaintiffs to prove the endorsements made by the first defendant, the trial Court has erroneously dismissed the suit, but the first appellate Court, after considering all the evidence available on record, has rightly decreed the suit and therefore, the judgment and decree passed by the first appellate Court are not liable to be interfered with.
16.On the basis of the rival submissions made by either counsel, the Court has to look into as to whether in the present case both parties have agreed to the effect that time is not essence of contract.
17.
Article 54 of the Limitation Act, 1963 reads as follows; Description of suit Period of limitation Time from which period begins to run For specific Three years The date fixed for the performance of performance,or, if no such date a contract is fixed, when the plaintiff has notice that performance is refused.
18.From the close perusal of
Article 54 of the said Act, it is made clear that a suit for specific performance shall be instituted within three years, if date fixed for performance and if no such date is fixed, three years from the date of refusal of performance.
19.In the instant case, the specific contention of the plaintiffs is that even though six months time has been fixed in the suit sale agreement, after execution of the same, the first defendant has received part of sale consideration on various occasions from the plaintiffs and thereby both the parties have agreed to the effect that time is not essence of contract.
20.The suit sale agreement has been marked as Ex.A1. In fact, on the suit sale agreement, various endorsements on various dates have been made and subsequently, a xerox copy of suit sale agreement has been taken and some endorsements have also been made by the first defendant on it. The specific contention of the first defendant is that after execution of Ex.A1, the suit sale agreement, no endorsements have been made by the first defendant and all the endorsements alleged to have been made by her are nothing but concoctions. Since a specific denial has been made by the contesting defendants with regard to endorsements alleged to have been made by the first defendant, it is for the plaintiffs to prove the same to the satisfaction of the Court.
21.The second plaintiff has been examined as PW1 and she would say in her evidence that Ex.A1 has come into existence betwixt them and the defendants 1 to 3, and on the date of execution of Ex.A1, the defendants 1 to 3 have received Rs.3,000/- by way of advance and subsequently, on various dates, the first defendant has received part of sale consideration. Therefore, it has been agreed to the effect that time is not essence of contract.
22.One Bakiam has been examined as PW2. She would say in her evidence that the first defendant has initially received Rs.3,000/- on the date of execution of Ex.A1 and subsequently she received Rs.3,000/- in which she has put her signature and the same has been marked as Ex.A10. The endorsement with reference to Ex.A10 has come into existence on 15.04.1991. PW3 viz., Arokiyasami has stated in his evidence that on 16.12.1990 the first defendant has received a sum of Rs.1,000/- from the plaintiffs and to that effect she has made an endorsement and the same has been marked as Ex.A11. One A.Joseph has been examined as PW4 and he has stated in his evidence that on 17.09.1991 the first defendant has received Rs.2,500/- and to that effect she has made an endorsement and the same has been marked as Ex.A12.
23.In fact, this Court has closely perused the entire endorsements made on Ex.A1, apart from the dates mentioned by PWs.2 to 4. It is seen from the record that the first defendant has subsequently received part of sale consideration from the plaintiffs. At this juncture, it would be more useful to look into Ex.A4. Ex.A4 is a copy of decree passed in Original Suit No.551 of 1992. The first defendant has instituted Original Suit No.551 of 1992 against the defendants therein so as to receive possession of the suit property. Since after execution of Ex.A1, the first defendant has instituted the said suit for recovery of suit property and since the first defendant has received part of sale consideration after execution of Ex.A1, the Court can easily come to a conclusion that in the instant case, both parties have agreed to the effect that time fixed in Ex.A1 is not essence of contract.
24.As per
Article 54 of the Limitation Act, 1963, a suit for specific performance should be instituted within three years from the date fixed for performance or within three years from the date when the plaintiff has taken notice to the effect that performance has been refused. It has already been pointed out that both parties have agreed to the effect that time is not essence of contract and further the strong circumstance which favours the plaintiffs is after execution of Ex.A1, the first defendant has instituted Original Suit referred to supra so as to recover possession of the suit property and therefore, on the date of execution of Ex.A1, the defendants 1 to 3 have not been in possession and enjoyment of the suit property and in order to recover the same, the said suit has been instituted and on that score also, the Court can come to a conclusion that in the instant case, time is not essence of contract. The trial Court has erroneously non-suited the plaintiff. But, the first appellate Court has rightly decreed the suit in part. In view of the discussion made earlier, it is very clear that the argument advanced by the learned counsel appearing for the appellants/defendants is sans merit and whereas the argument advanced by the learned counsel appearing for the respondents/plaintiffs is really having subsisting force.
25.The learned counsel appearing for the appellants/defendants in support of his contention has accited the following decisions;
a)In 1997 (3) Supreme Court Cases 1 (K.S.Vidyanadam and others Vs. Vairavan) the Honourable Apex Court has held that in a suit for specific performance, circumstances to be considered in exercising the discretion.
b)In AIR 1986 Madras 156 (S.K.Panchaksharam Mudaliar (died) and others Vs. T.V.Kanniah Naidu and others), this Court has held that material alteration by plaintiff in agreement sought to be enforced, specific performance relief cannot be granted.
c)In AIR 2004 Madras 8 (Surygandhi Vs. Lourduswamy), it has been held that though time was not essence of contract, his claiming specific performance after 9 years was not within reasonable time.
d)In AIR 1971 Andhra Pradesh 279 (Kommisetti Venkatasubbayya Vs. Karamsetti Venkateswarlu and others) it has been held that if the plaintiff set up false plea in a suit for specific performance, he is not entitled to get the same.
e)In AIR 1983 Calcutta 216 (Mst.Sahida Bibi Vs. SK.Golam Muhammad) it has been held that in a suit for specific performance, failure to prove on the part of the plaintiff his willingness and readiness, he is not entitled to get the reliefs sought for in the plaint.
f)In 1937 MWN 1158 (Sirigindeedi Subbarayadu Vs. Kopanathi Tatayya and others) it has been held that if the plaintiff set up false case, relief of specific performance cannot be granted.
g)In AIR 1983 Allahabad 343 (Rahat Jan Vs. Hafiz Mohammad Usman (deceased by LR's) and others) it has been held that in a suit for specific performance, the plaintiff should prove his readiness and willingness to perform his part of the contract.
h)In AIR 1990 Allahabad 65 (Bishambhar Nath Agarwal Vs. Kishan Chand and others) it has been held that the plaintiff has not made payment in terms of mode as provided in the agreement and therefore, he cannot be deemed to be ready to get deed executed.
26.In the instant case, as narrated earlier, the suit agreement has come into existence on 22.11.1990. Admittedly, the first defendant is the absolute owner of the suit property and by way of abundant action, the defendants who are the daughters of the first defendant have also joined in execution of Ex.A1. In the suit sale agreement, six months time has been stipulated for execution of sale deed and further it has been agreed to hand over possession of the suit property to the plaintiffs. But, the first defendant as plaintiff has instituted Original Suit No.551 of 1992 against her husband and others so as to recover possession of the suit property. Therefore, it is quite clear that on the date of execution of Ex.A1, suit sale agreement, possession of the suit property is not with the defendants 1 to 3 and further the first defendant has received a part of sale consideration on various occasions from the plaintiffs and the same has been proved by examining PWs.2 to
4.
27.Of-course it is true that some endorsements have not been proved on the side of the plaintiffs. The only point that comes for consideration in the present case is as to whether both the parties have agreed to the effect that time is not essence of contract and this factual aspect can be inferred from the subsequent events which happened between the parties. If really, the defendants 1 to 3 are very particular that time is essence of contract, definitely, the first defendant would not have received a part of sale consideration from the plaintiffs and further she has instituted Original Suit No.551 of 1992 only after a lapse of two years from the date of suit sale agreement. Therefore, it is quite clear that in the present case, both the parties have not given much adherence to the time stipulated in Ex.A1 and both parties might have agreed to the effect that time is not essence of contract. Further from all the surrounding circumstances, the Court can easily infer that the plaintiffs are always ready and willing to perform their part of contract and unless they are ready and willing to perform their part of contract, they would not have parted with sale consideration.
28.It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case. In the instant case, as narrated in many places, both parties have agreed to the effect that time is not essence of contract and further on the side of the plaintiffs, some endorsements alleged to have been made by the first defendant, have been proved by way of examining PWs.2 to 4. The only defence taken on the side of the defendants is that all the endorsements made on Ex.A1 are concocted. Since some of the endorsements made on Ex.A1 have been proved on the side of the plaintiffs, then the entire burden shifts upon the defendants 1 to 3 to prove that thumb impressions found on the alleged endorsements, are not the thumb impression of the first defendant. Therefore, viewing from any angle, the contentions urged on the side of the appellants/defendants cannot be accepted.
29.The trial Court, without considering the available evidence on record, has erroneously dismissed the suit. But, the first appellate Court, after analysing all the circumstances appearing in the present case, has rightly decreed the same in part. In view of the discussion made earlier, it is very clear that the judgment and decree passed by the first appellate Court are perfectly correct and the same do not require any interference and further all the substantial questions of law raised on the side of the appellants/defendants are not having substance at all and altogether the present second appeal deserves dismissal at the stage of admission.
30.In fine, the present second appeal deserves dismissal at the stage of admission and accordingly is dismissed without costs. Consequently, connected miscellaneous petition is also dismissed. The judgment and decree passed in Appeal Suit No.258 of 2004 by the Additional Subordinate Court, Dindigul are confirmed.
gcg To
1.The Additional Subordinate Judge, Dindigul.
2.The Principal District Munsif, Dindigul.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.