This appeal suit had been filed, against the judgment and decree, made in O.S.No.403 of 2004, by the I Additional District Court, Madurai, dated 20.09.2007.
2. The above suit had been filed, seeking specific performance of an oral agreement of sale dated, 05.08.1996 against the Defendants 1, 3 to 5 and directing them to execute and register the sale deed for a sum of Rs.8,51,000/- (Eight Lakhs Fifty One Thousand Only) in favour of the plaintiff in respect of the suit property, after receiving balance sale consideration and on failure, for further direction to the court to register the sale deed and for costs.
3. It had been stated in the plaint that there was an oral agreement of sale, dated 05.08.1996 between the plaintiff and Maruthanayagam Mudaliar and the first defendant, M.Ilayanathan, the third defendant M.Chokkalingam, the fourth defendant, M.Nandakumar and the fifth defendant M.Matcharaja. It had been further stated in the plaint that late Maruthanayagam Mudaliar and the defendants 1 to 6 constitute a joint Hindu undivided family, but however, the second defendant, M.Arumugam did not join in the agreement. It had been stated that under the said oral agreement, the suit property was agreed to be sold for a sum of Rs.23,000/- (Rupees Twenty Three Thousand Only) per cent. At the time of the oral agreement, a sale advance receipt, dated 05.08.1996 was executed by Maruthanayagam Muthaliyar and the first, third, fourth and fifth defendants for having received an advance amount of Rs.1,00,000/- (Rupees One Lakh only). It was also stated that possession was handed over to the plaintiff. It was stated that the original title was to be given, but it was not given. Subsequently, Maruthanayagam Muthaliyar, died in January 1998. It had been stated that the property has to be surveyed by the Tashildar and it was also not done. In the mean while, the plaintiff came to know that the defendants made an attempt to sell the property to third parties. Consequently, the plaintiff issued a notice in Dinakaran Newspaper on 13.07.1998. The defendants sent a reply on 11.06.1998 stating that they had cancelled the agreement. There was a Panchayat held in between the parties. However, the defendants sold a portion of the property to the defendants 7 to 10. Stating that such a sale is illegal and claiming that oral agreement has to be performed, the suit has been filed, seeking specific performance.
4. The second defendant has filed a written statement, stating that he was not a party to the oral agreement and that he had also not signed in the sale advance receipt and consequently, he was not bound by any agreement entered into by Maruthanayagam Muthaliyar or his sons, who were shown as the defendants 1, 3, 4 and 5. He also stated that there was no relief sought against him and consequently, he claimed that he was an unnecessary party to the suit.
5. The defendants 1, 3 to 6 have also filed a separate written statement, stating that it was true that there was an oral agreement and an advance of Rs.1,00,000/- was received on 05.08.1998, towards the land in R.S.No.35/1C at Uthangudi Village, Madurai. It was further stated that the plaintiff was not put in possession. It was also stated that either they or their father did not agree to divide the suit property into house plots. It had been stated that the plaintiff had not performed his part of the agreement and after nearly two years, they cancelled the agreement after putting the plaintiff on notice of the same. It had been stated that they have also sent a notice with respect to the cancellation of the agreement. It had been further sated that the plaintiff was never ready and willing to purchase the property. It had been further stated that they have sold a portion of the property to a third party, exercising their right as owners. They claimed that the suit should be dismissed.
6. The defendants 7 to 10 have also filed a separate written statement, stating that they were the bona fide purchasers for valuable consideration from the owners, namely, the defendants 1 to 6. They were also put in possession of the respective portions, which they had purchased. They claimed that they had no notice of any agreement with the plaintiff. It was also not possible since the agreement was oral. Consequently, they claimed that the suit should be dismissed.
7. The parties went to trial. On the basis of their respective rival pleadings, the learned I Additional District Judge, Madurai had framed the following issues for consideration:-
1.Whether the plaintiff is entitled to the relief of specific performance?
2.Whether the defendants 7 to 10 purchased the suit properties after the agreement on 05.08.1996?
3.Whether the plaintiff has cause of action?
4.Whether the suit property is correct as mentioned in the plaint?
5.To what relief the plaintiff is entitled?
8. During the trial, on the side of the plaintiff, two witnesses, namely, Kanagasabai (plaintiff) and an independent witness, Balachandar were examined as PW.1 and PW.2. On the side of the defendants, three witnesses namely, M.Chokkalingam (third defendant), an independent witness, S.Kathiresan and M.Arumugam (second defendant) were examined as DW.1 to DW.3. The plaintiff marked Exs.A1 to A7. Ex.A1 dated 05.08.1996 is the sale advance receipt. Ex.A2 dated 06.06.1998 is the Registered Post sent by the defendants. Ex.A3 dated 04.06.1998, is another registered post sent by the defendants. Ex.A4 dated 11.06.1998 is the copy of notice sent by the defendants. Ex.A5 dated 19.04.1999 is the copy of the notice sent by the plaintiff. Ex.A6 dated 07.05.1999 is the notice sent by the defendants. Ex.A7 dated 01.06.1998 is another copy of the notice sent by the defendants. On the side of the defendants, Ex.B1 to B8 were marked. Ex.B1, dated 04.06.1998 is the copy of the notice sent by the defendants. Ex.B2, dated 03.06.1998 is the copy of the demand draft for Rs.60,000/-. Ex.B3, dated 04.06.1998 is the copy of certificate of posting and registered post. Ex.B4, dated 07.06.1998 is the returned cover for notice sent by registered post. Ex.B5, dated 11.06.1998 is the copy of the registered post issued by the defendants. Ex.B6, dated 19.04.1999 is the registered post issued by the defendants. Ex.B7, dated 07.05.1999 is the copy of registered post sent by the defendants. Ex.B8, dated 10.04.2003 is the copy of savings account of the first defendant Ilayanathan.
9. On consideration of the oral and documentary evidence, the First Additional District Judge had dismissed the suit, holding that the agreement of sale had been cancelled by the defendants, after having sent notice to the plaintiff and that the plaintiff was not ready and willing to perform his part of the agreement. Challenging the said findings, the plaintiff has filed the present appeal.
10. This court heard the arguments advanced by Mr.S.Alagarsamy, learned Counsel for the appellant, Mr.R.A.Mohanram, learned counsel for the respondents 1, 3 to 6 and 8 and Mr.K. Mahendran, learned counsel for the ninth respondent.
11. The plaintiff, who is the appellant herein, had filed the suit, seeking specific performance of the oral agreement of sale entered into by him on 05.08.1996 with Maruthanayagam Mudaliar and M.Ilayanathan (1st defendant), M.Chokkalingam (3rd defendant) and M.Nandakumar (4th defendant) and M.Matcharaja (5th defendant). The agreement of sale was with respect to the property more fully described in the plaint, namely, vacant land measuring 37 cents in R.S.No.35/1, Uthangudi Village, Madurai North. It is seen that the boundaries are not given in the schedule of property in the plaint. It is also seen that 37 cents of land is part of a larger area of two acres and 40 cents, which has been subdivided into one acre and 25 cents and from which the land which was to be acquired for formation of ring road was also left out and the oral agreement was for 37 cents. It is, therefore, seen that primarily, the actual property, which was agreed to be sold, was not identified by giving specific boundaries. On that one ground itself, the claim for specific performance has to be negatived. The agreement cannot be executed, since the identity of the property itself is not known from the available total area of one acre 25 cents.
12. It is an admitted fact that even prior to the institution of the suit, the defendants had sold plots to the seventh defendant J.Rabia, eighth defendant Dr.Thasudin, the ninth defendant P.Solaiyappan and tenth defendant Ramasamy. They had filed an independent written statement, claiming that they have a concluded sale deed executed in their favour and that they have also taken the possession of their respective portions, which were sold to them. The sale deed in their favour were also registered. They have also been in possession and continued to be in possession as on the date of the suit. This aspect had not been reflected in the schedule of property given in the plaint. This also makes it impossible to the Court to grant the relief specific performance, since the plaintiff has come forward with the agreement, which cannot be executed. In this connection, Section 14 (1)(b) of the Specific Relief Act, has to be referred to and it is as follows:- ??(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;?
13. Since the property cannot be identified, the agreement, with respect to such property cannot be specifically enforced. The second provision is very clear on this aspect. Even otherwise, even if the property is identifiable, the appellant had come to the court with the specific case that he had an oral agreement of sale and pursuant to such oral agreement of sale, he was put in possession. When he seeks to enforce such agreement, the law requires that the agreement, wherein possession was granted, must be in writing and registered. If it is not in writing and if it is not registered, the relief of specific performance cannot be granted.
14. In this connection,
Section 53(A) of the Transfer of property Act relates to part performance of an agreement, wherein possession has been given. A reference must also be given to
Section 17 (1-A) of the Registration Act 1908. The effect of such an unknown registration, is given under
Section 49 of the Registration Act and it is as follows:- ??49. Effect of non-registration of documents required to be registered:-
No document required by
section 17 (or by any provision of the transfer of Property Act, 1882,) to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
15. It is, therefore, seen that when the appellant approached the Court on the basis of an unregistered oral agreement, then the burden is very heavily on him to show that he has performed his part of the agreement pursuant to such an oral agreement. According to the appellant, the consideration payable was Rs.23,000/- (Rupees Twenty Three Thousand Only) per cent. He had agreed to purchase 37 cents. He had paid an advance of Rs.1,00,000/- (Rupees One Lakh Only). To evidence the payment of Rs.1,00,000/- (Rupees One Lakh only), he had produced Ex.A1, dated 05.08.1996. In Ex.A1, an advocate called P.Kannan had signed as a witness. The said witness was not examined in Court to substantiate Ex.A1. Even if a benefit has to be given to the appellant with respect to the contents of Ex.A1, it is seen that subsequent to that date namely, 05.08.1996, the appellant has not paid any further amount towards the balance sale consideration. Even in the cause of action, the next date was given as 06.06.1998, on which date, according to the appellant, he had sent a registered notice to the respondents 1, 3 to 5. However, the appellant had suppressed a very vital fact. He had suppressed the fact that on 04.06.1998 itself, on which date a notice, which was marked as Ex.B1, was sent, cancelling the agreement and had also forwarded a demand draft for a sum of Rs.60,000/- (Rupees Sixty Thousand Only), after deducting expenses and a copy of the demand draft has also been produced as Ex.B2. Therefore, on the date of the notice sent by the appellant, there was no agreement in force and it had been cancelled. The advance amount had been returned by way of the demand draft. The property had also been sold to a third party. The property available had not been given in the plaint. The property could not be identified. The boundaries of the property had not been given.
16. The appellant had come to Court, seeking performance of an oral agreement and at the same time, claiming that he had been put in possession. If he had been put in possession pursuant to the agreement of sale, and when the relief of specific performance, then the agreement should be in writing and should be registered. Consequently, I am not able to convince myself to grant any relief to the appellant.
17. The learned I Additional District Judge had found that the appellant herein had also failed to prove his readiness and willingness. It is seen that the appellant had not even paid the advance amount for sale consideration. Even at the time of the institution of the suit, he had not even deposited the same. He had not given any proof of deposit of the amount . All these aspects go against the appellant. In this connection, the learned counsel for the respondent had relied on 2016 (4) CTC 76 in the case of K.Nanjappa (dead) by L.Rs. Vs. R.A. Hameed alias Ameersab (dead) by L.Rs. And another, wherein the Hon'ble Supreme Court has held in paragraphs 20 and 21 as follows:
?20. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of a Oral Agreement a Written Contract, heavy burden lies on the Plaintiff to prove that there was consensus ad idem between the parties for the concluded Agreement Sale of immovable property. Whether there was such a concluded contact or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms fro sale of immovable property were concluded between the parties.
21. In a Suit for Specific Performance of a Contract, the Court has to keep in mind Section 20 of Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific Performance. However, the Court is not bound to grant Specific Performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the Plaintiff but also to the Defendant.?
18. In this case, there has been no agreement before the Court to decide as to whether there has been consensus ad idem between the parties. On the aspect of readiness and willingness, it is seen that the appellant should be ready and willing to perform his part of the agreement right from the date of agreement till the actual date of execution. In this case, readiness and willingness of the appellant had stayed with payment of advance. He had not given any proof that he has found available and that he was willing to part such advance to Maruthanayagam Mudaliar and his sons, from whom, he purchased the property. As a matter of fact, the property itself was not identified. Therefore, even assuming that there was readiness and willingness on the part of the appellant, a decree for specific performance cannot be granted for the reasons stated above.
19. In the result, this appeal suit is dismissed with costs. The judgment and decree of the trial Court, made in OS.No.403 of 2004, dated 20.09.2007 is confirmed. Consequently, connected MP is closed.
To
1. The I Additional District Judge, Madurai.
2. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.