The third defendant in the suit in O.S.No.310 of 2004 on the file of the Fast Track Court, Dindigul, is the appellant in this First Appeal.
2.The first respondent in this appeal, as plaintiff, filed a suit in O.S.No.310 of 2004 for specific performance of an agreement of sale dated 05.06.1997 upon receipt of a sum of Rs.40,000/- by the third defendant, as per the direction of the first defendant and directing the first defendant to execute the sale deed and to get the signature of the defendants 2 to 8 as attestors of the documents. The plaintiff also prayed for an alternative relief directing the first defendant to receive the balance of sale consideration on behalf of the third defendant and to execute the sale deed and to get the attestation of the defendants 2 to 8. The plaintiff also prayed for an injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.
3.The brief facts that are set out in the plaint are as follow: 3.1.The suit property belongs to the first defendant by virtue of a sale deed dated 06.07.1953. The suit property is a self-acquired property of the first defendant. The first defendant was residing in the suit property. The plaintiff took a portion of the property on lease from the first defendant. The said portion is the northern half of suit property and the upstairs portion of the house. The first defendant also accepted a sum of Rs.10,000/- as advance and thus, the plaintiff is enjoying the suit property by having its office. The plaintiff was using the suit property for its official purposes and that the society was running the office in the suit property. At that time, the first defendant demanded the plaintiff to deposit a sum of Rs.55,000/- as advance. Thereafter, on 05.06.1997, the plaintiff entered into an agreement of sale with the first defendant for a valuable consideration of Rs.5,00,000/-. Though only a sum of Rs.80,000/- was paid as advance under the agreement, it was agreed that the balance of sale consideration namely Rs.4,20,000/- was payable within a period of twelve months. The plaintiff should obtain the sale deed at his cost and expenses. After the agreement was executed by the first defendant, the plaintiff also handed over the remaining portion of the suit property and thus, the entire suit property is in the occupation and possession of the plaintiff. On the same date of execution of the sale agreement, the first defendant executed a consent letter agreeing that the plaintiff should pay a sum of Rs.60,000/- to each of his seven children and that upon such amount being paid to them, they would come and sign the document of conveyance as attestors. The plaintiff further alleged that as agreed by him, the plaintiff has paid a sum of Rs.80,000/- to the first defendant and paid a sum of Rs.1,80,000/- to three persons on 06.06.1997. It was further stated that a sum of Rs.60,000/- was paid to each of the defendants 7 and 8. Since a sum of Rs.3,80,000/- had already been paid, the plaintiff is liable to pay only a sum of Rs.40,000/-, since the third defendant received only a sum of Rs.20,000/- in stead of Rs.60,000/- and the said sum of Rs.40,000/- has to be paid to the third defendant.
4.The case of the third defendant in the written statement in brief are as follows:
4.1.Only a portion of the suit property was given to the plaintiff on lease. The plaintiff was given only two rooms in the ground floor. The remaining portion of the building including the upstairs portion was in the enjoyment of the first defendant. Since the first defendant was in need of money for the marriage expenses of his daughter, the upstairs portion of the suit property was handed over to the plaintiff upon receipt of a sum of Rs.40,000/-. The agreement dated 05.06.1997 was totally denied by the third defendant. According to the third defendant, the sale agreement dated 05.06.1997 is a created and concocted document. It was the case of the third defendant that the suit property was acquired by the first defendant by her own funds and that there was no intention or necessity for selling the suit property to the plaintiff. The third defendant denied his signature in the sale agreement also. It was the further case of the third defendant that the first defendant decided to give the property to the third defendant. However, the other defendants have concocted the agreement in collusion with the plaintiff only to defeat the rights of the defendant. The alleged sale agreement dated 05.06.1997, according to third defendant, is a false document on the ground that the first defendant has never signed in this document dated 05.06.1997. The contention of the plaintiff that the third defendant also received a sum of Rs.20,000/- was totally denied.
4.2.The third defendant also contended that the first defendant had executed a Will in favour of the third defendant. It was further contended by the third defendant that the other defendants have instigated the suit as they knew that they are not entitled to any right. It was also contended by the first defendant that the value of the suit property is more than Rs.15,00,000/- and that the suit has been filed with a long delay so as to cause prejudice and irreparable injury to the defendant.
5.The trial Court after framing necessary issues, came to the conclusion that the plaintiff has proved the suit agreement which was marked as Ex.A2. Since the suit agreement dated 05.06.1997 is admitted, the trial Court has found that the first defendant has executed the sale agreement and that the sale agreement dated 05.06.1997 is valid and proved. The trial Court also accepted the evidence of P.W.2 who is none other than the attestor of the document Ex.A2. One of the contentions of the plaintiff that the suit is barred by limitation was also answered by the trial Court in favour of the plaintiff. Since it was found by the trial Court that the suit agreement Ex.A2 dated 05.06.1997 is proved by the plaintiff, the trial Court relying upon the evidence of P.W.2 came to the conclusion that the plaintiff is entitled to enforce the agreement Ex.A2 and that the contention of the third defendant that the suit agreement Ex.A2 is concocted is not proved. One of the main contentions of the third defendant was that the suit property was bequeathed in his favour under Ex.B1, dated 12.02.2001. The trial Court has held that the document Ex.B1 will not affect the plaintiff's suit as it was executed by the first defendant during the subsistence of suit agreement and that the defendants 1 and 3 are bound to honour the suit agreement under Ex.A2. Since the agreement under Ex.A2 dated 05.06.1997 was held to be genuine and proved, the trial Court has further held that the Will executed by the first defendant in favour of the third defendant will not confer any right in favour of the third defendant and that the third defendant cannot claim absolute right in respect of the suit property. Further, the trial Court also found that the case of the plaintiff that a sum of Rs.20,000/- was paid to the third defendant is not proved and that therefore, the plaintiff is liable to pay a sum of Rs.60,000/- to the third defendant towards balance of sale consideration. The suit was decreed by the trial Court, therefore, on condition that the plaintiff should pay a sum of Rs.60,000/- to the third defendant and that upon such payment, all the defendants should execute the sale deed in favour of the plaintiff. The trial Court also granted a decree for injunction. Aggrieved by the judgment and decree of the trial Court, the third defendant has preferred this appeal suit.
6.Mr.V.Sitharanjandas, learned counsel for the appellant has made the following submissions:
6.1.The findings of the lower court that the document Ex.A2 is proved is erroneous and that the trial Court has failed to advert to an important circumstance that the other defendants have colluded with the plaintiff as they were not given any right in the Will executed by the first defendant.
6.2.When the trial Court has come to the conclusion that the plaintiff has not proved the payment of Rs.20,000/- to the third defendant as alleged in the plaint, the trial Court ought to have refused to grant the relief of specific performance as the plaintiff has not proved his readiness and willingness to perform the contract in terms of the sale agreement.
6.3.The execution of the Will under Ex.B1 was not disputed by the plaintiff and even in the evidence, it is only contended on behalf of the plaintiff that the Will which was executed subsequent to the sale agreement will only be subject to the sale agreement under Ex.A2.
6.4.The plaintiff in the present case has not come to Court with clean hands and that the evidence on the side of plaintiff is contradictory. The sale agreement refers to the mortgage. There was no whisper about the mortgage in the plaint or in the evidence of plaintiff. Even as per the agreement, only a sum of Rs.80,000/- was paid. The balance has to be paid within twelve months. The agreement dated 05.06.1997. Since the agreement is dated 05.06.1997, the period for performance of contract for payment of balance expires on 04.06.1998. However, the endorsement made in the subsequent document Ex.A3 clearly show that the plaintiff has not paid the amount in terms of the sale agreement. Though the other defendants have colluded with the plaintiff, the plaintiff is liable to show its readiness by offering the amount payable to the third defendant at the appropriate time in terms of the sale agreement. Failure of the payment in terms of the sale agreement would render the agreement Ex.A2 unenforceable and the plaintiff is not entitled to the relief of specific performance.
7.Heard the argument of the learned counsel for the appellant as well as the learned counsel for the respondents.
8.The suit filed by the plaintiff for specific performance can be decreed only if the plaintiff apart from proving the execution of the sale agreement under Ex.A2 prove that the plaintiff was always ready and willing to perform his part of the contract as agreed under Ex.A2. In the present case, it is not in dispute that the plaintiff has agreed to pay a sum of Rs.60,000/- to the third defendant even as per the case pleaded by the plaintiff.
9.The plaintiff came forward with the case that a sum of Rs.20,000/- was paid to the third defendant. It is also the specific case of the plaintiff that the third defendant agreed to sign the consent deed after receipt of the balance of Rs.40,000/-. Similarly, the plaintiff pleaded that the fourth defendant had received only a sum of Rs.40,000/- and the fourth defendant also agreed to sign the consent document at the time of receiving the balance amount of Rs.20,000/-. Since, the plaintiff has come forward with the case that a sum of Rs.20,000/- was paid to third defendant and that the third defendant had agreed to receive the balance later, unless the plaintiff prove their case, they cannot seek specific performance of the agreement by proving their readiness and willingness. The plaintiff has produced Ex.A3 which was also executed by the first defendant simultaneously when she executed the agreement under Ex.A2. After the execution of the agreement and consent deed, the document Ex.A3 was endorsed by some of the defendants acknowledging the receipt of money in terms of the document Ex.A3. Though the endorsement of the third defendant and fourth defendant are found in this document, the signatures of defendants 3 and 4 are not found in this document. All the endorsements appear to have been made by a single person. Though the date of endorsements is 06.06.1997, it was the case of the plaintiff in evidence that on 06.06.1997, only a sum of Rs.1,80,000/- was paid to the defendants 2, 5 and 6. It is also admitted that only on 10.12.1998 defendants 7 and 8 were paid each a sum of Rs.60,000/-.
10.It is the further case of the plaintiff in evidence that on 06.06.1997 the third defendant received only a sum of Rs.20,000/-. Similarly, the fourth defendant received a sum of Rs.40,000/-. There is no signature of defendants 3 and 4 in this document. However, the plaintiff explained that the defendants 3 and 4 agreed to sign this document upon receipt of the balance amount payable to them. It is also the case of the plaintiff that they are ready and willing to pay the balance of sale consideration to the third defendant. P.W.1, during cross-examination, deposed that the plaintiff agreed to pay a sum of Rs.70,000/- to each one of the children of the first defendant. This is contrary to the case pleaded by the plaintiff in the plaint. Taking this as a slip answer, this Court is not inclined to harp on this. Though the amounts found in Ex.A3 was paid on different dates, P.W.1 admits that the endorsements marked as Ex.A4 to A7 were written by the same person simultaneously. The evidence of P.W.1 would only indicate that the endorsements were made by the plaintiff without reference to the actual payment that were paid to the children of the first defendant as contemplated under sale agreement Ex.A2. The manner in which the payments were made by the plaintiff and the signatures of other defendants obtained by the plaintiff in Ex.A3 would clearly show that the plaintiff has not come to the Court with clean hands to seek specific performance of contract. P.W.1 further admits that money was paid to the defendants 7 and 8 after one year. Even in the evidence of P.W.1 except stating that the third defendant received a sum of Rs.20,000/- and agreed to put his signature in Ex.A3 at the time of receiving the balance, absolutely there is no evidence to prove that part payment was made by plaintiff to third defendant and that there was an offer that was made by the plaintiff during the subsistence of contract to make the balance of payment to the third defendant. The 8th defendant was examined as P.W.2. Though she supports the case of the plaintiff regarding the execution of the sale agreement and regarding the payments that were made to other defendants, her evidence regarding the payment that was made to the third defendant is not reliable. Further, the evidence of P.W.2 is also to the effect that a sum of Rs.1,80,000/- was paid as advance at the time of negotiations and that the agreement was executed after three days. This is contrary to the case pleaded by the plaintiff. Thus, the evidence of P.W.2, gives an indication that the other defendants except third defendant were won over by the plaintiff to join hands with plaintiff probably thinking that the third defendant will not get the suit property as per the Will executed by the first defendant in his favour. It is true that the Will is not the subject matter of the suit and that it cannot prevent the plaintiff to get a decree for specific performance in the present suit. However, it cannot be denied that there is motive for other defendants to join hands with plaintiff as the third defendant has claimed title under the Will. In the circumstances, this Court has to consider whether the plaintiff has proved their readiness and willingness in terms of the agreement under Ex.A2. As pointed out earlier, the plaintiff has not proved the payment of Rs.20,000/- to the third defendant as alleged in the plaint. The plaintiff has failed to prove that the entire sum of Rs.60,000/- was offered to the third defendant within the time fixed in the agreement of sale under Ex.A2. Though the sale agreement is dated 05.06.1997 the pre-suit notice under Ex.A9 was issued only on 15.02.2001 just prior to the suit. Even in the notice, the plaintiff has expressed their readiness and willingness to pay only a sum of Rs.40,000/- to the third defendant. Though a further sum of Rs.20,000/- is payable to fourth defendant, it was not properly explained as to how this payment was made to the fourth defendant. Even from this notice, which was issued by the plaintiff, nearly after 3+ years from the date of agreement, the plaintiff has not come forward to perform their part of contract as per the agreement under Exs.A2 and A3. In such circumstances, it is to be held that the plaintiff has not proved readiness and willingness to perform their part of the contract in terms of the sale agreement under Ex.A2. The judgment of the trial Court reveals that one of the main issues that arise for consideration namely the readiness and willingness of the plaintiff has not been focussed as it is required in law. It is now well settled that the plaintiff can succeed in a suit for specific performance only if they plead and prove readiness and willingness to perform their part in terms of the sale agreement. In the absence of readiness and willingness, the plaintiff is not entitled to the decree for specific performance.
11.Further, the conduct of the plaintiff and other defendants namely the children of the first defendant except the appellant show that they have colluded with the plaintiff. It may be due to the execution of the Will in favour of the appellant by his mother. The evidence of P.W.2 is totally contrary to the terms of the agreement and against the case of plaintiff. The appellant is not a party to the document Ex.A3. It appears that the appellant has denied the execution of agreement under Ex.A2 as well as the document A3 namely the consent deed. Though the thumb impression of the first defendant in the documents Ex.A2 and A3 are disputed, the appellant has not taken any steps to prove his contention. But in a suit for specific performance, the plaintiff is expected to come to Court with clean hands and any falsity in their case will disentitle them to seek the equitable and discretionary relief of specific performance from Court. Since material discrepancy between the evidence of P.W.1 and P.W.2 are not explained, this Court is not in a position to accept the case of the plaintiff as it was projected in the plaint.
12.The plaintiff / first respondent in the appeal has also filed C.M.P.(MD)No.340 of 2017 in the above appeal seeking permission to amend the plaint to include the alternative prayer for refund of the sum of Rs.4,40,000/- from defendants 2 to 8 and for granting a decree for injunction restraining defendants 2 to 8 from alienating or encumbering the suit properties till such time the defendants 2 to 8 refund the amount received by them as advance and to create a charge over the suit property for the amount payable by defendants 2 to 8. This petition was seriously contested by the appellant firstly on the ground that he has not received any money from the plaintiff. Secondly, the amendment which is sought to be introduced after this long period cannot be entertained as the new relief is already time barred. There are other submissions by the learned counsel for the appellants as well as the other respondents who are defendants.
13.The plaintiff in a suit for specific performance, which was filed without an alternative relief for refund of earnest money, is entitled to file another suit for recovery of money after dismissal of his suit for specific performance. There is no legal impediment. In that view of the matter, this Court find that the plaintiff is entitled to file a petition for amendment of plaint, seeking a decree based on the admission of defendants who are in no unmistakable terms admitted the receipt of a sum of Rs.60,000/-. Hence, the petition for amendment of plaint is allowed in the interest of justice so that this Court can render complete justice between parties. Of course, the third defendant has denied the receipt of any amount from the plaintiff. This Court has also given a finding that the plaintiff has not proved the payment of any money to the third defendant. It is the definite case of the plaintiff that a sum of Rs.80,000/- was paid to the mother of third defendant. The trial Court has categorically given a finding that the first defendant received a sum of Rs.80,000/- and the other defendants except the third defendant have in all received a sum of Rs.3,60,000/-. Hence, the plaintiff is entitled to the refund of the said sum of Rs.4,40,000/-. Though the third defendant appellant did not receive any money from the mother, the receipt of money by the first defendant is not seriously disputed by his counsel. Hence, the third defendant who has succeeded to the estate of first defendant cannot shirk his liability to repay the said sum of Rs.80,000/- along with other defendants. The respondents 2 to 7 are liable to pay each, a sum of Rs.60,000/- to the plaintiff / first respondent. Defendants 1 to 7 are also liable to pay the sum of Rs.80,000/- i.e., each one of them is liable to pay a sum of Rs.11,429/- (rounded of to Rs.11,430/-). Since the plaintiff / first respondent is in enjoyment of the property, they are not entitled to interest. Hence, there shall be a decree directing defendants 1, 2 and 4 to 7 to pay a sum of Rs.71,430/- within a period of one month from the date of receipt of a copy of this judgment. However, the appellant is liable to pay a sum of Rs.11,430/- within a period of one month from the date of this judgment. Thus, the alternative prayer in the plaint, now introduced by way of amendment is granted to the plaintiff / first respondent in the above appeal in the above terms.
14.This appeal is allowed and the judgment and decree dated 02.05.2006 in O.S.No.310 of 2004 on the file of the Fast Track Court, Dindigul, granting the relief of specific performance is set aside. There shall be a decree in O.S.No.310 of 2004 for recovery of money in favour of plaintiff / first respondent in the above appeal from the respondents 2 to 7 in this appeal and the appellant for the amount referred to above against each of them. Considering the facts, the appellant is entitled to the costs of this appeal from respondents 2 to 7 in this appeal.
To
1.The Fast Track Court, Dindigul.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
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