(Judgment of the Court was delivered by PRABHA SRIDEVAN ,J..) The defendants 2 to 3 in the suit for specific performance are before us having lost both before the trial Court and the learned single Judge. They claim to have entered into an agreement with the first defendant the owner of the property and pending the suit obtained a decree for specific performance against the first defendant and the sale deed has also been executed in their favour. They are aggrieved by the concurrent decrees against them.
2. The first respondent herein is the plaintiff. She filed the suit for specific performance of the agreement dated 24.3.1979 by executing the sale deed in her favour for Rs.61,312/- on receiving the balance of Rs.45,811/- or a decree for specific performance of the agreement dated 15.7.1979 by executing the sale deed in her favour for Rs.70,000/- upon receiving the balance of Rs.55,000/- These are the alternative prayers of this unusual case.
3. The facts are that the property described in the suit schedule belonged to the father of the second respondent. It was allotted to the second respondent in a partition. The fist respondent and her husband had been residing in the property for more than 20 years as tenants. The second respondent initiated eviction proceedings before the Rent Controller, Salem.. There were talks of compromise and then the second respondent expressed his intention to sell the property to the first respondent . On 24.3.1979 an agreement was entered into and the sale consideration was calculated at the rate of Rs.26 per sq.ft. and a sum of Rs.501/- was received as advance in the presence of the witnesses. The second respondent agreed to bring the surveyor and measure the entire property. It was also agreed that the first respondent and her husband should continue to reside therein and pay the rent till the sale is executed. Two months later i.e. in May 1979, the second respondent received another sum of Rs.15,000/- for his urgent expenses apart from the earlier sum of Rs.501/- requesting her to treat it as advance. In June-July 1979, the second respondent brought a document and mentioned that there was some mistake in the earlier document and that he would rectify it and bring a fresh document. This document was taken away by him and torn off by him. The second respondent agreed to bring a surveyor to measure the property . But he did not do so. In the first week of July 1979, the first respondent came to know that there was an encumbrance over the suit property and that the second respondent had mortgaged the property on 9.5.1975 for Rs.17,000/-. When this was mentioned to the second respondent he agreed to discharge the mortgage with the amount received as advance. On 9.8.1979, the second respondent came to the house of the first respondent with two typed documents which were already signed by him. He requested the first respondent to sign at the marked portions and also asked her husband and his son to sign in the place left out between the signature already found. He asked her to sign and give one document quickly since he had to see his father who was seriously ill and this was done in about 5 or 10 minutes in due compliance with the second respondent's request. Thereafter the first respondent, her husband and her son found that the document which was left with them appeared to be an agreement for sale of the property for Rs.70,000/- wherein an advance of Rs.15,000/- had been paid. The first respondent pleaded that the recitals in this document were far from truth and the real agreement and concluded contract was the one that was entered into on 24.3.1979. Since the second respondent had obtained her signature in a document which contained particulars relating to date, price and the advance amount contrary to the real agreement, she and her husband rushed to his place and found that the second respondent was absent and his father was hale and healthy. They found that the story given by the second respondent was false and motivated and they realised the planned fraud played upon them by the first respondent. On the same day i.e. on 9.8.1979 the first respondent sent a notice to the second respondent requesting him to fulfill his part of the contract as per the agreement dated 24.3.1979. This was replied by the second respondent making some untenable allegations. Again the first respondent gave reply on 13.8.1979. There was exchange of notices. There was a publication in Malai Murasu and again a notice was issued on 15.7.1980. There were attempts at Panchayats but it was postponed. The first respondent and her husband frequently fell ill, but the first respondent was always ready and willing to perform her part of contract dated 24.3.1979. Thereafter by way of amendment, para 17A, was introduced where a reference was made to the agreement dated 15.7.1979 and it was pleaded that if the court was inclined to find that the said document was true she would seek a prayer for a specific performance of that document alternatively by way of abundant caution. Para 18A was also added by way of amendment wherein it was pleaded that the suit for specific performance filed by the appellants herein against the second respondent in O.S.No. 20 of 1982 was collusive and will not bind the first respondent and that after the suit was filed an ante dated agreement dated 3.8.1978 was fabricated and the suit had been filed. While the first respondent was preparing for the trial of the suit, she obtained certified copy of the decree in O.S.No.20/82 and therefore the sons of the first appellant were also made as parties, since the sale deed had to be executed by them.
4. A written statement was filed by the second respondent herein where the allegations in the plaint were denied relating to the agreement dated 24.3.1979 and relating to the alleged fraud played by the second respondent obtaining signature in two sets of documents. In para 8 of the written statement filed by the second respondent it was pleaded that the allegation that the agreement dated 15.7.79 is not true and only the agreement dated 24.3.1979 is true is not correct. According to him the first respondent was never ready and willing to perform her part of contract and that the alternate relief cannot be claimed by the first plaintiff. She had put up a totally false case for endlessly and fraudulently continuing in possession of the property.
5. The second defendant who is the first appellant herein filed the written statement denying all the allegations in the plaint and referring to an agreement with the second respondent dated 3.8.1978. According to him he had a valid decree obtained in O.S.No. 20 of 1982 and the sale deed had also been executed by the Court in his favour on 20.12.1982 and duly registered.
6. A separate written statement was also filed by the appellants 2 and 3 who pleaded that the very fact that the plaintiff seeks to enforce one agreement after denying it shows that there is no valid contract. An additional written statement was filed by the second respondent herein, where he had referred to the agreement with the appellant and denied any collusion between them. The first appellant also filed a written statement denying the collusion and fraud.
7. The learned Additional Subordinate Judge, Salem framed as many as eight issues and decreed the suit. The learned single Judge also confirmed the said decree.
8. The learned counsel appearing for the appellants submitted that this was a case where the plaintiff denied the agreement dated 15.7.1979 and when it is so, both the courts ought not to have granted a decree for specific performance of the said agreement. The learned counsel submitted that both in the reply notice and as well as in the plaint she had attacked the agreement dated 15.7.1979 as one obtained by fraud. In those circumstances neither can specific performance be granted on the basis of an agreement that has been denied by the plaintiff herself as fraudulent nor can there be any readiness and willingness to perform as per the said agreement which the plaintiff herself attacks as fraudulent.
9. The learned counsel submitted that the appellants herein had in their favour an agreement even prior to the agreement which is the basis of the suit and had also obtained a decree in their favour and the title now stands in the name of the appellants. Therefore against the decree they have the right to appeal. When there is a decree against them to execute the sale deed in accordance with the agreement dated 15.7.1979, they can maintain an appeal against the plaintiff.
10. The learned counsel submitted that whether the first defendant referred to the agreement in their favour at the earliest opportunity or not is not a relevant factor for the courts to decide whether there should be a decree for specific performance in favour of the plaintiff. The plaintiff must establish that she has made out a case for the Court to direct the execution of the sale deed in her favour and for that she should prove that there was an agreement in her favour and that she was ready and willing to perform in accordance with the agreement.
11. The learned counsel submitted that in the present case the plaintiff herself was uncertain that which was the agreement that had to be specifically performed. So, the discretionary relief of specific performance ought not to have been granted in her favour.
12. The learned Counsel submitted that when as early as 1979 performance was refused, the fact that the suit was filed only in 1981 though within a period of limitation is a matter that shall be considered by this court while granting specific performance. There cannot be any ambiguity in the pleadings regarding the agreement which has to be specifically enforced and the manner in which it came into existence.
13. The learned Senior Counsel appearing for the first respondent submitted that as early as 1954 in LALA DURGA PRASAD AND ANOTHER VS. LALA DEEP CHAND AND OTHERS ( 1954 1SCR 360), the Supreme Court had held that it is possible to take alternate stands and though in that case it was the defendant who did so that will not change the legal position. The learned Senior Counsel also submitted that this is an equitable jurisdiction and the court must take note of the fact that the agreement in favour of the appellants did not find a mention in the written statement filed by the second respondent who is the first defendant. The first defendant remained exparte. Therefore he was willing to execute the sale deed in favour of the plaintiff and in those circumstances, these appellants whose agreement was disbelieved by the trial court as well as the learned single Judge, cannot attack the decree. They have no locus to challenge the finding regarding readiness and willingness.
14. The learned Senior Counsel submitted that the decree in O.S.No.20 of 1982 need not weigh in the minds of the court since that was clearly a collusive suit and filed during the pendency of the suit. The learned Senior Counsel submitted that it is only after the exparte decree was obtained by them that they took the categoric stand regarding their rights. The learned counsel referred the written statement filed by the second respondent herein where there was only a mention of the agreement dated 15.7.1979 and not Ex.B1 the so called agreement in favour of the appellants and though this written statement is a detailed one the fact that there is no mention of the earlier agreement would go to show that the agreement was false. The learned Senior Counsel also inferred that there is a clear finding that the appellants and the second respondent have colluded to defeat the rights of the plaintiff .
15. The learned Senior counsel referred to the finding of the learned single Judge who observed that the absence of pleading regarding existence of Ex.B1 agreement would lead to strong presumption that Ex.B1 was not at all in existence at that time and it must have come into being only after the filing of the written statement filed by the first defendant. The learned Senior Counsel submitted that though it is true that the jurisdiction of this court in Letters Patent Appeal is wider than the jurisdiction under Section 100 CPC yet this court must be circumspect while interfering with factual findings.
16. The question is whether the plaintiff has proved her case and even if she has proved it whether she is entitled to the discretionary relief of specific performance ? It is well settled that even if the plaintiff proves her case, the court need not exercise discretion in her favour, especially in a suit for specific performance, as it is an equitable remedy. Ex.A10 is the legal notice sent by the second respondent to the first respondent where there is a reference to the agreement dated 15.7.79 in favour of the plaintiff and that the second respondent is even ready to execute the sale deed in her favour. To this Ex.A11 reply was sent in which, it is stated that it is false to say that she agreed to purchase the property for Rs.70,000/- and that "the real agreement was only on 24.3.1979 and that the plaintiff is always ready and willing with the money to perform her part of the contract dated 24.3.1979..." Therefore on the date of Ex.A11 dated 13.8.1979 the plaintiff's readiness and willingness was only with regard tot eh agreement dated 24.3.1979. Ex.A13 is a telegram sent by the plaintiff in which it is stated that "she is also ready to have the sale as per the agreement dated 24.3.1979".
17. Therefore on 14.8.1979 again the readiness and willingness of the plaintiff is only with regard to the agreement dated 24.3.1979. Exs.A15 which is again a telegram sent by first respondent / plaintiff and here again she has stated that "tomorrow ready to have the sale deed as per agreement dated 24.3.1979". Here too the readiness is with regard to agreement dated 24.3.1979. In Ex.A16 reply notice, the second respondent denied that there was any agreement on 24.3.1979 in the following words. " There is no agreement between your client and my client on 24.3.1979. In Ex.A20 which is again a reply sent by the first respondent's counsel to the second respondent's counsel it is alleged as follows:-
"... that on 15.7.79 my client contracted to purchase the said property from your client for a price of Rs.70,000/- is false.
It is also false to say that the agreement was written on 15.7.1979..
The agreement dated 15.7.1979 is a document which was prepared by your client without the knowledge and consent of my client."
Thereafter the plaintiff's counsel has asked the first defendant's counsel to inform his client that he is bound by the agreement dated 24.3.1979 which is plaintiff is entitled to enforce. That is the stand of the plaintiff prior to the suit. In the plaint too she has stood by this, stating that the agreement dated 15.7.1979 was brought about by fraud. After saying so peculiarly she pleads that if for any reason the Court should find that the agreement dated 15.7.1979 is true, valid and binding she is ready and willing to abide by the directions of this court.
18. The plaintiff therefore, seeks to enforce an agreement which the plaintiff herself had attacked as false. If the agreement is alleged to be fraud and brought about without her willingness and consent, then there is neither readiness nor willingness to perform that agreement as far as 15.7.79 is concerned. Therefore, both the trial court and the learned single Judge ought not to have granted a decree for specific performance of the agreement dated 15.7.1979. If they were of the opinion that the agreement dated 24.3.1979 was a concluded contract and it deserved to be specifically performed, then the decree may have been granted in respect of that agreement. They cannot grant a decree for specific performance of a contract which the plaintiff herself had alleged to be fraudulent and obtained without her consent. An agreement is something where there is consensus ad idem and this is denied by the plaintiff and therefore, we cannot grant a decree for specific performance in favour of the first respondent in respect of the agreement dated 15.7.1979.
19. Once we have arrived at the conclusion that the agreement denied by the plaintiff herself cannot be specifically performed it is not necessary for us to go into any other issues. However since the decision in LALA DURGA PRASAD AND ANOTHER VS. LALA DEEP CHAND AND OTHERS (AIR 1954 SC 75) was referred to by the learned Senior Counsel for the first respondent, we will deal with that decision. There the vendor was one Nawab. He was the first defendant. There was an agreement on 7.2.1942. The plaintiff's case was that on that date the said Nawab agreed to sell the property to him and accepted the earnest money the same day. Later he sold the same property to the appellants on 4.4.1942. The appellants' case was that the plaintiff's agreement dated 7.2.1942 was not a concluded one as the parties never reached finality. The Nawab's plea was one of fraud and mis-representation. He said that there was a previous contract with the appellants and they had paid him advance on 5.2.1942. After this he was told by the plaintiff's brother that they had backed out and believing that could he had entered into an contract dated 7.2.1942 with the plainnff.
20 It is in that context, they considered two alternatives. The execution of the sale deed by the Nawab or in the alternative conveyance by the subsequent purchaser along to the the plaintiff In LALA DURGA PRASAD AND ANOTHER VS. LALA DEEP CHAND AND OTHERS (AIR 1954 SC 75) in para 30 the Supreme Court held thus:
30. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on thetitle which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta HighCourt in Kafiladdin Vs.Samiraddin 'MANU/WB/0158/1930.. AIR 1931 Cal 67, 129 Indi.Cas.869 and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, paragraph 207; also Potter Vs.Sanders (67 E.R. 1057). We direct accordingly.
21. This does not necessarily support the plaintiff's case that it is possible for her to seek two alternative prayers that this court may grant specific performance of the agreement dated 24.3.1979 or if the court feels that another agreement is true, the court may grant specific performance of another agreement. It is for the plaintiff to prove which of the two agreements is true and which of two agreement she wants to be specifically performed. When the plaintiff is uncertain the Court cannot decide for her.
22. In GANESH SHET VS.DR.C.S.G.K.SETTY (1998(5) SCC 381) the Supreme Court considered a case where the plaintiff pleaded that there was one agreement executed at Bangalore and another one at Delhi the Supreme Court was not impressed with the case of the plaintiff and specific performance was denied.
23. As regards the other contention that this court while sitting in Letters Patent Appeal cannot interfere with the factual finding, a Constitution Bench of the Supreme Court in ALAPATI KASI VISWANATHAM VS. A.SHIVARAMA KRISHNAYYA AND OTHERS (Civil Appeal No.232 of 1961) held that there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the Letters Patent Bench was not in law entitled to reverse the concurrent findings of fact must be negative. In this case, especially where the error pointed out by the appellants goes to the root of the matter we have no hesitation to hold that we can interfere .
24. In UMABAI AND ANOTHER VS. NILKANTH DHONDIBA CHAVAN (2005 6 SCC 243) the plaintiff raised an alternative plea that he was a debtor and the deed of mortgage was executed only because the appellants were not licensed money lenders and he even asked for a decree of accounting. The Supreme Court held that the plaintiff in a suit for specific performance of contract may raise an alternative plea that the transaction is a mortgage by way of conditional sale and he must be ready and willing either to repay the debt or pay the amount of consideration as agreed upon and that the conduct of the parties must be determined having regard to the entire attendant circumstances. In the present case, we have no doubt in our mind that the conduct of the plaintiff had at any point of time shown that she was ready and willing to perform the contract dated 15.7.1979. Therefore, she is not entitled to specific performance of the contract.
25 In ANIGLASE YOHANNAN VS. RAMLATHA AND OTHERS ( 2005 (7) SCC 534) the Supreme Court had observed that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of contract. In this case there is a denial that there was a contract on 15.7.1979. So there was no occasion for the plaintiff to aver that she was ready and willing to perform her part of contract.
26. There were strenuous objections regarding the conduct of the defendants since the agreements brought about by them came to light only very late in the day and that it is only after they were armed with exparte decree which was obtained collusively they came forward with a definite stand in the suit.
27. We agree with the submissions made by the learned counsel appearing for the appellants that when there is a decree against the appellants, they have the right to challenge it and once the appeal is before us we have to examine whether the decree granted is sustainable. For the reasons given earlier, the discretion ought not to have exercised in favour of the plaintiff.
28. In the result, the judgment and decree of the learned Additional Subordinate Judge, Salem made in O.S.No.346 of 1981 dated 30.4.1987 and as confirmed by the learned single Judge of this court dated 30.4.2001 in A.S.No.20 of 1988 are set aside. The Letters Patent Appeal stands allowed with costs.
krr/ To The Additional Subordinate Judge, Salem