Balakrishnan and Kunja Alias Dhakshinamurthy vs Rajalakshmi

K. Mohan Ram, J.—The unsuccessful defendants in O.S. No. 236 of 1990 on the file of the District Munsif Court at Thiruvarur who has

suffered a decree for specific performance has filed the above second appeal against the judgment and decree passed in A.S. No. 12 of 1992 on

the file of the District Court, Nagapattinam confirming the judgment and decree passed in O.S. No. 236 of 1990.

The case of the respondent is that the first appellant agreed to sell the suit property to her for a sum of Rs. 3,240/- on 15.06.1990 and he has

received an advance of Rs. 2,101/- from her. The terms of sale was reduced into writing and an agreement of sale was executed by the first

appellant in favour of the respondent. The respondent through her husband requested the 1st appellant to execute the sale deed but the first

appellant was evading, hence a legal notice was issued to the appellant and another brother Paranjjothi. The first respondent alone sent a reply

stating that there was a mediation after the sale agreement and in the mediation the respondent has agreed for the cancellation of the agreement.

The case of the respondent is that she never agreed for the cancellation of the agreement. In order to defeat the rights of the respondent the first

appellant has executed the sale deed in respect of the suit property to his brother the second appellant and according to the respondent the sale

deed is not binding on her. The plaintiff was ready and willing to perform her part of the contract but the first appellant has committed breach of

agreement and therefore the respondent is entitled to a decree for specific performance.

The first defendant contested the suit inter alia contending that without knowing the contents of the agreement of sale he has signed the same and

though it is stated in the agreement as if an advance of Rs. 2,101/- has been received by the first appellant infact he has received an advance of Rs.

101/- only. It was further contended that there was a Panchayat and as per the decision of the Panchayadhars the respondent agreed for the

cancellation of the agreement but when the first appellant offered to refund the advance amount of Rs. 101/-, the respondent refused to receive the

same and did not return the original copy of the agreement as per the undertaking given before the Panchayadhars and hence the respondent has

filed the suit for specific performance. It was also contended by the first appellant that he is an illiterate person and knows only to sign and the

agreement was false and fraudulent.

On the above said pleadings the following issues were framed by the Trial Court:

(1) Whether the plaintiff is entitled for a decree for specific performance and for possession?

(2) To what relief the plaintiff is entitled to on the above said issues?

On the above issues the parties went into trial and during the trial on the side of the respondent herein, the husband of the respondent was

examined as PW1 and one Pa.Chinnayan who attested Ex.A1 Sale Agreement was examined as PW2 and on the side of the respondent Exs. A1

to A5 were marked. On the side of the appellants the first appellant was examined as DW1, one Murugaiyan was examined as DW2 and the

second appellant was examined as DW3.

On a careful consideration of the oral and documentary evidence available on record, the Trial Court found Ex.A1 Sale Agreement as true and

binding on the first appellant and after recording a finding that the respondent was ready and willing to perform her part of the contract, decreed

the suit as prayed for. Being aggrieved by that the appellants herein preferred an appeal in A.S. No. 12 of 1992 before the District Court,

Nagapattinam but the lower Appellate Court by confirming the findings of the Trial Court dismissed the appeal. Being aggrieved by that the above

second appeal has been filed by the appellants.

While admitting the second appeal the following Substantial Question of Law has been framed:

Whether the Courts below have erred in granting the decree for specific performance when there is no mutuality on the recitals in EX.A-1?

Heard Mr. K. Srinivasan, learned Counsel for the appellants.

The learned Counsel for the appellants submitted that Ex.A1 agreement has been executed only by the first appellant and his wife whereas the

respondent has not signed Ex.A1 and as such there is no concluded agreement of sale and therefore the Courts below have committed an error in

decreeing the suit for specific performance. The learned Counsel further submitted that though in the written statement itself the first appellant has

contended that his signature was received in Ex.A1 by fraud and misrepresentation the Courts below have not properly considered the same in the

light of the oral evidence available on record. The learned Counsel further submitted that there is no mutuality on the recitals in Ex.A1 and as such

the Courts below have erred in granting a decree for specific performance. In support of the above contentions the learned Counsel relied upon the

decisions reported in:

(1) Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma,

(2) S.M. Gopal Chetty Vs. Raman alias Natesan and 7 others,

(3)Pushpa Bai v. Dr. Williams (2001) 3 M.L.J. 52

(4) R. Chinnadurai v. S. Rajalakshmi 2004 4 L.W. 186

Both the Courts below on a careful consideration of the oral and documentary evidence adduced in the case have concurrently found that

Ex.A1 agreement is true and genuine and the Courts below have rejected the plea of the first appellant that he had signed Ex.A1 without knowing

the contents of the same. Therefore, the concurrent findings of fact which are based on evidence available on record cannot be interfered with by

this Court while exercising power u/s 100 of the CPC unless the said finding is perverse. It is not the case of the appellant that the findings are

perverse. Therefore, the contention of the learned Counsel has to be considered in the light of the fact that Ex.A1 has been found to be true and

genuine.

In Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma, a learned judge of the Kerala High Court has observed as follows:

Where an agreement for sale of property was unilaterally executed by the vendor and towards a sale consideration a pronote, liable to become

time barred, was executed by the vendee and the pronote had become time barred on the expiry of the term fixed for execution of sale deed, there

was no mutuality of parties and the agreement could not be termed as a contract in the circumstances of case and specific performance could not

be granted.

In S.M. Gopal Chetty Vs. Raman alias Natesan and 7 others, a learned judge of this Court has observed as follows:

If there is no contract at all, then the question of specific performance does not arise. As per Section 15 of the Specific Relief Act, 1963, the

contract can be enforced only by a party to a contract. The plaintiff is not a party at all to the contract. Therefore he is not entitled to obtain a

decree from Court for specific performance. Hence the suit has to be dismissed on this ground alone.

In R. Chinnadurai v. S. Rajalakshmi 2004 4 L.W. 186 it is observed as follows:

An agreement must have two parties and both are to sign the same. Only then it is an agreement. For this basic necessity, there may be

exceptions under exceptional circumstances as it has been advocated on the part of the Courts and the case in hand is not falling under the

exceptional cases

In Pushpa Bai v. Dr. Williams (2001) 3 M.L.J. 52 it is observed as follows:

It is well-settled and also not in dispute that even assuming that a contract of sale has been entered by the first defendant, it cannot be enforced

against the defendants 3 to 5 who are not parties and parties being Mohammed as the first defendant has no authority to enter into an agreement

on behalf of the defendants 3 to 5. If at all the first defendant could convey her undivided interest and not more than that even if it is held that

Exs.A-1, A-2 and A-6 are true.

In the light of the said plea of the first defendant when the plaintiff is not a signatory to the Ex.A-1 sale agreement and when the sale agreement

recital as well as the entire body of the agreement proceeds as if both the parties are to sign, of Ex.A-1 not being signed by the plaintiff, it is too

late in the day to contend that the plaintiff is entitled to specific performance of the agreement of sale Ex.A-1.

It is well-settled that specific performance of contract may be obtained by (i) any party to the agreement, (ii) representative in interest or any

member of any party thereto or assignee of the contract are entitled to sue on the contract. The plaintiff had not signed the agreement, nor anyone

else had signed the agreement Ex.A-1, on behalf of the plaintiff as his representative or agent or power of attorney. In the light of the denial and

there being no admission and the plaintiff not being a signatory to the agreement Ex.A-1, it is too late for him to claim specific performance.

Further, it is not as if the defendant in terms of the recital had addressed the terms to the plaintiff and bind herself to the stipulation, but being mutual

Ex.A-1 is not binding.

A contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It may

be that a contract of sale of immovable property need not be in writing. Yet, even in respect of such oral agreement the burden is on the party to

prove that there is consensus ad idem between the parties for a concluded oral agreement of sale of immovable property. A contract to sell in the

represent case, if at all it is binding on the first defendant alone and not on the other defendants namely defendants 3 to 5 who are not parties to the

sale agreement. Further Ex.A-1 proceeds as if the first defendant had agreed to convey the entire property including the land which would show

that the plaintiff''s intention and also taking advantage of the possession of the property in the hands of the plaintiff''s wife, Ex.A-1 had been created

and signature of the first defendant had been secured on some stamp papers, which agreement is neither true nor mutual.

In the decision reported in Kumarasamy and Others Vs. S.K. John (died) and Others, , a Division Bench of this Court after considering a number

of judgments of different High Courts including Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma, has observed as follows:

10.... Apart from this Section 20, Sub-section (4) of the Specific Relief Act, specifically provides that the Court shall not refuse to any party

specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. This statutory

provision takes care of such an argument as has been advanced on behalf of the appellant. So we do not find any substance in the argument based

on lack of mutuality in Ex.A-1 agreement advanced on behalf of the appellants.

Once we find that Ex.A-1 agreement is true and the first respondent has paid Rs. 15,000/- as advance and deposited the entire balance of sale

consideration in Court at the time of filing of the suit, there is no reason for denying the relief of specific performance....

The above said decision of the Division Bench has not been brought to the notice of the learned Judges who have decided the cases reported

in S.M. Gopal Chetty Vs. Raman alias Natesan and 7 others, , R. Chinnadurai v. S. Rajalakshmi 2004 4 L.W. 186 and Pushpa Bai v. Dr.

Williams (2001) 3 M.L.J. 52. The decision reported in Kumarasamy and Others Vs. S.K. John (died) and Others, being a Division Bench

decision this Court is bound by the same.

In the decision reported in Pushpa Bai v. Dr. Williams (2001) 3 M.L.J. 52, it is not laid down as a proposition of law that unless the plaintiff is

a signatory to the agreement of sale he cannot seek specific performance of the same. In Para 41 of the said decision it is observed as follows:

In the light of the denial and there being no admission and the plaintiff not being a signatory to the agreement Ex.A-1, it is too late for him to claim

specific performance. Further, it is not as if the defendant in terms of the recital had addressed the terms to the plaintiff and bind herself to the

stipulation, but being mutual Ex.A-1 is not binding.

The above observation makes it clear that the agreement was not admitted by the defendant and the learned judge has found that the defendant in

terms of the recitals has not addressed the terms to the plaintiff and bind herself to the stipulation and only in that factual background the learned

judge has observed as above. Therefore, it cannot be stated as a proposition of law, the learned Judge has laid down that unless the plaintiff is a

signatory to the sale agreement he cannot enforce the same. The learned judge in Para 44 of the said Judgment has observed as follows:

... A contract of sale of immovable property need not be in writing. Yet, even in respect of such oral agreement the burden is on the party to

prove that there is consensus ad idem between the parties for a concluded oral agreement of sale of immovable property.

Therefore, it is clear that in a suit for specific performance, if the plaintiff is able to prove that there is consensus ad idem between the parties for a

concluded oral agreement, the sale agreement can be enforced. In this case as pointed out above, on the evidence available on record the Courts

below have concurrently found that Ex.A-1 agreement as been executed by the first appellant after receiving an advance of Rs. 2,101/- from the

respondent and as such the respondent has clearly proved that there was consensus ad idem between the respondent and the first appellant.

Therefore, merely because the respondent has not affixed her signature to Ex.A-1 agreement the suit for specific performance cannot be dismissed.

The observation of the Division Bench of this Court in Kumarasamy and Others Vs. S.K. John (died) and Others, makes it clear that once the

Court found that a sale agreement is true and the plaintiff is ready and willing to perform her part of the agreement of sale, the suit has to be

decreed granting a decree of relief of specific performance in view of the provisions contained u/s 20(4) of the Specific Relief Act, 1963 which

specifically provides that the Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not

enforceable at the instance of the other party.

Since the substantial question of law has already been decided by the law laid down by the Division Bench of this Court in Kumarasamy and

Others Vs. S.K. John (died) and Others, strictly speaking the question of law framed cannot be said to be a substantial question of law at all.

For the reasons stated above, the substantial question of law framed is answered against the appellants and in favour of the respondent.

Accordingly, the second appeal fails and the same is dismissed. But, however, there will be no order as to costs. Consequently, the connected

C.M.P. is closed.