Imthiaz (died) vs Basheer Unnisa

R. Karuppiah, J.—The Second Appeal originally filed by the Appellants 1 to 3/ Defendants 1 to 3 in the Suit against the Decree and Judgment dated 26.11.1999 made in A.S. No.64 of 1999 on the file of the II Additional District and Sessions Court cum Chief Judicial Magistrate Court, Krishnagiri reversing the Decree and Judgment dated 30.4.1999 made in O.S. No.214 of 1991 on the file of the District Munsif Court, Krishnagiri. During the pendency of the Second Appeal, the First Appellant died and Appellants 4 to 10 impleaded as legal heirs of the First Appellant.

For the sake of convenience, the Plaintiff in the original Suit is referred as First Respondent and Defendants 1 to 3 in the Original Suit referred as Appellants 1 to 3 and the Legal Heirs of the deceased First Appellant.

The First Respondent/Plaintiff filed the Suit for Specific Performance and for possession of the Suit property. Briefly, the case of the First Respondent is that the Suit property belongs to Appellants 1 to 3 and Respondents 2 & 3. The Appellants 1 to 3 and also the Respondents 2 & 3 entered into an Agreement of Sale with First Respondent on 10.2.1988 in respect of Suit property. As per the Agreement of Sale, the Appellants 1 to 3 and Respondents 2 & 3 agreed to sell the Suit property for sale consideration of a sum of Rs.15,000/- in favour of First Respondent and the above said entire sale consideration was paid on the date of Agreement. The Appellants 1 to 3 and Respondents 2 & 3 apportioned the sale consideration between them and they agreed to come and execute the document. Both sides agreed that the First Respondent should ascertain the guideline value and bear the registration expenses, etc. and for that purpose, one month time was fixed for execution in the Sale Agreement. The First Respondent gathered the above said particulars within ten days and approached the Appellants 1 to 3 and Respondents 2 & 3 with cash and asked them to execute the Sale Deed on 21.2.1988. But Appellants 1 to 3 and Respondents 2 & 3 were postponing to execute the Sale Deed. Since they are close relatives of the First Respondent, not take immediate steps. But, the First Respondent was always ready and willing to perform her part of contract. It is also averred in the Plaint that the First Respondent issued a telegraphic Notice on 4.3.1991 and as stated in the said Notice, the First Respondent went to Sub-Registrar Office on 7.3.1991 and she was waiting for the Appellants 1 to 3 and Respondents 2 & 3. On that date, the First Respondent had attested in another document bearing document No.203/1991 in the Sub-Registrar Office. But, Appellants 1 to 3 and Respondents 2 & 3 never turned up with ulterior motive. Hence, the Suit.

Appellants 1 to 3 jointly filed Written Statement in which it is stated that Appellants 1 to 3 never agreed to sell the Suit property to The First Respondent for Rs.15,000/- or any other amount either on 10.2.1988 or any other date. According to the Appellants, the Suit property was not apportioned or partitioned between the Appellants 1 to 3 and Respondents 2 & 3 as such the question of selling specific extent does not arise. It is also averred in the Written Statement that the Respondents 2 & 3 had borrowed some amount from the First Respondent in or about the year 1983 and not discharged the loan. There was a Panchayat during February 1988 and the Panchayatars wanted Respondents 2 & 3 to execute some document as security for the return of said amount borrowed by them. As the properties were not divided, the Panchayatars compelled the Appellants 1 to 3 to join with Respondents 2 & 3 to execute the Agreement of Sale and hence, it was only intended as a security. Therefore, the above said Agreement of Sale is not valid and the First Respondent is not entitled to any relief of specific performance. The Appellants 1 to 3 have also denied the allegations that the First Respondent had gathered the guideline value within ten days from the date of Agreement and she was ready with cash to meet the expenses. The Appellants also denied that the First Respondent approached the Appellants 1 to 3 and Respondents 2 & 3 to execute the Sale Deed on 21,2.1988 and they were postponing the execution. According to the Appellants, as there was no Agreement of Sale, question of ready and willing, does not arise. The First Respondent never expressed her readiness and willingness within the said period. The Appellants denied the allegations that the First Respondent had sent a telegraphic Notice to the Appellants 1 to 3 on 4.3.1991 and the First Respondent had gone to Sub-Registrar Office on 7.3.1991 and she was attested some other documents are all false. The First Respondent has not demanded the Appellants 1 to 3 and Respondents 2 & 3 to execute Sale Deed within time and therefore, Appellants 1 to 3 and Respondents 2 & 3 are not liable to execute any Sale Deed in favour of the First Respondent and prayed for dismissal of the Suit.

The Third Respondent herein/Fifth Defendant in the Suit has not filed any Written Statement before the Trial Court and remained ex parte.

The Second Respondent/Fourth Defendant in the Suit filed a separate Written Statement in which it is stated that the Second Respondent or Third Respondent never received any amount or any portion from the First Respondent or Appellants 1 to 3. Since 1962, Respondents 2 & 3 and their mother came out from the joint family and they have been living separately, but, the property was divided in the year 1971. Respondents 2 & 3 have only formally joined in the Agreement of Sale, without any right to sell or to receive consideration. The Second Respondent has not aware of any debt due from one Muzabarkhan to the First Respondent. It is also averred in the Written Statement that Respondents 2 & 3 had simply signed the Agreement of Sale, at the request of First Respondent to avoid further litigation and hence, the Agreement of Sale neither binding on Respondents 2 & 3 nor they are liable to execute Sale Deed. No Notice was received by Respondents 2 & 3. The Respondents also denied that the First Respondent was waiting at the Sub-Registrar Office. Further the exact extent of the property was agreed to be conveyed under the Agreement of Sale is not definite and therefore, the Suit is liable to be dismissed.

The Trial Court has framed three issues, from the above said pleadings. The First Respondent/Plaintiff has deposed as PW1 and marked two documents as Ex.A1 & A2 on her side. The Second Appellant alone deposed as DW1 and no documents were marked on the side of Defendants/Appellants 1 to 3 and Respondents 2 & 3.

The Trial Court has considered the above said oral and documentary evidence adduced on either side and finally accepted the execution of Ex.A1/Agreement of Sale is true and valid document, but, the Trial Court has held that the First Respondent has not proved that she was ready and willing to perform her part of contract and hence, the First Respondent is not entitled to the relief of specific performance and dismissed the Suit. 9. Aggrieved over the above said finding of the Trial Court, the First Respondent/Plaintiff preferred the First Appeal in A.S. No.64 of 1999. The First Appellate Court allowed the First Appeal and set aside the Decree and Judgment passed by the Trial Court and granted the relief of specific performance as prayed for in the Plaint.

Aggrieved over the above said reversal finding of the First Appellate Court, the deceased/First Appellant and 2nd & 3rd Appellants, who are Defendants 1 to 3 in the original Suit preferred the Second Appeal. During the pendency of the Second Appeal, the First Appellant died and Appellants 4 to 10 were impleaded as Legal Heirs of the deceased/First Appellant.

This Court has admitted the Second Appeal on the following substantial questions of law:

"1. When Ex.A1 Agreement of Sale is not legally valid and binding for lack of consideration and is further vitiated on account of the material alterations and interpolations thereto, whether the Plaintiff (First Respondent) is entitled to specific performance of the same ?

In the absence of any certainty as to the exact nature, extent and boundaries of the property sought to be conveyed under Ex.A1 Agreement of Sale and in the light of the material alterations effected to the same regarding the actual extent of the property, which thereby completely vitiates the contract, whether the Lower Appellate Court is right in granting the discretionary relief of specific performance of the contract ?

When Ex.A1 clearly specifies the time frame within which the sale is to be completed and time has been categorically made the essence of the contract, whether the Lower Appellate Court is right in granting the equitable relief of specific performance, particularly when the Plaintiff (First Respondent) had failed to aver and prove her readiness and willingness to perform the essential terms of the contract and complete the sale within the stipulated time as required under Section 16(c) of the Specific Relief Act, 1963 ?

Whether the Plaintiff (First Respondent) is entitled to the equitable relief of specific performance when the Plaintiff (First Respondent) does not contain the requisite allegations that she was continuously ready and willing to perform her part of the contract and is therefore, not in conformity to Forms 47 & 48 of Appendix A. Schedule 1 of C.P.C. ? and

Whether the Judgment and Decree of the Lower Appellate Court are vitiated and unsustainable on account of its failure to consider the oral and documentary evidence adduced in the proper perspective, resulting in perverse findings rendered thereon and which are based on no evidence ?"

Heard the learned Counsel appearing for the Appellants and the First Respondent. Respondents 2 & 3 have not appeared in person or through Counsel.

The learned Counsel appearing for the Appellants would submit that the First Appellate Court has failed to consider the fact that the Appellants 1 to 3 had executed Ex.A1/Agreement of Sale only as a security for the return of loan borrowed by Respondents 2 & 3 herein, in an earlier occasion and therefore, the above said Agreement of Sale is not legally valid or binding as against the Appellants. The learned Counsel further submitted that Ex.A1/Agreement of Sale was never meant to be acted upon and also pointed out that the First Appellate Court has grossly erred in reversing the Trial Court findings that there is no certainty as to the actual extent and boundaries in Ex.A1 transaction. According to the Appellants, even assuming that Ex.A1 is true and valid document, the First Respondent has failed to prove her readiness and willingness to complete the contract of sale and the time is essence of contract and hence, the First Respondent is not entitled to the relief as prayed for in the Suit.

Per contra, the learned Counsel appearing for the First Respondent pointed out that both the Courts below have rightly held that Appellants 1 to 3 and Respondents 2 & 3 executed Ex.A1-Agreement of Sale in favour of the First Respondent with intention to sell the Suit property. The learned Counsel would submit that the Trial Court has wrongly dismissed the Suit only on the ground that the First Respondent has not ready and willing to perform her part of contract and also some difference in the share of Appellants 1 to 3 and Respondents 2 & 3. The learned Counsel appearing for the First Respondent further submitted that the First Appellate Court has discussed in detail about the oral and documentary evidence adduced on either side and finally set aside the Decree and Judgment passed by the Trial Court and allowed the First Appeal and decreed the Suit as prayed for by the First Respondent and the above said findings of the First Appellate Court are not perverse and no legal questions arise and therefore, the Second Appeal is not maintainable.

Both sides admitted the execution of Ex.A1/Agreement of Sale and also admitted the signatures found in the Agreement are genuine. It is also admitted that Appellants 2 & 3 are the sons of the deceased First Appellant and Respondents 2 & 3 are brother of the deceased First Appellant.

The contention of the First Respondent is that Appellants 1 to 3 and Respondents 2 & 3 agreed to sell the Suit property to the First Respondent for a sum of Rs.15,000/- and executed Ex.A1/Agreement of Sale on 10.2.1988 and received the entire sale consideration on the date of Agreement itself. Since Appellants 1 to 3 and Respondents 2 & 3 failed to executed the Sale Deed, the First Respondent filed the Suit for Specific Performance, as per Ex.A1/Agreement of Sale.

The contention of Appellants 1 to 3 is that Respondents 2 & 3 had borrowed some amount from the First Respondent in or above the year 1983 and the above said amount was not returned to the First Respondent and there was a Panchayat in February 1988 and the Panchayatars wanted Respondents 2 & 3 to execute some documents as security. It is also contended by Appellants 1 to 3 that as the property was not divided, the panchayatars compelled Appellants 1 to 3 to execute Ex.A1/Agreement of Sale. But, it was intended only as a security and therefore, the First Respondent is not entitled to the relief of specific performance.

The case of Respondents 2 & 3 is that they never received any amount, as per Ex.A1/Agreement of Sale, but, Respondents 2 & 3 had simply signed in the Ex.A1/Agreement of Sale to avoid litigation. The above said Respondents 2 & 3 have not admitted that they obtain any loan from First Respondent, as pleaded by the Appellants.

Both the Courts below have considered the entire oral and documentary evidence adduced on either side and finally held that Ex.A1/Agreement of Sale, executed with intention to sell the Suit property and the above said document is a genuine document and not executed as a security and also rejected the contention of Respondents 2 & 3 that they affixed their signature only to avoid their litigation.

Respondents 2 & 3 have not challenged the above said concurrent findings of both Courts below. But, only Appellants 1 to 3 have preferred the Second Appeal. The main contention of Appellants 1 to 3 is that Appellants 1 to 3 had executed Ex.A1/Agreement of Sale and signed the document only as joint owners as security for return of loan borrowed by Respondents 2 & 3 and therefore, ExAl/Agreement of Sale was never meant to be acted upon. As rightly discussed and held by both the Courts below, the contention of Appellants 1 to 3 cannot be accepted, since Appellants 1 to 3 failed to prove the above said contention by oral and documentary evidence. Further Respondents 2 & 3 also denied the above said contention of the Appellants before the Courts below. Therefore, as rightly held by both the Courts below Ex.A1/Agreement of Sale is genuine document and also executed with intention to sell the Suit property to the First Respondent, after receiving the entire sale consideration by Appellants 1 to 3 and Respondents 2 & 3, as pleaded by the First Respondent.

Learned Counsel appearing for the Appellants would contend that in the Agreement, it has been stated that Appellants 1 to 3 should execute Sale Deed in respect of 17 cents and Respondents 2 & 3 should execute 10 cents and totally 27 cents. But, in the description of property in the schedule in the above said Ex.A1/Agreement of Sale, the extent mentioned in the earlier portion as 27 cents, but in the last lines it is also mentioned 3 cents to be executed in favour of Bahrunnisa and therefore, total extent of the property comes to 30 cents. Further learned Counsel pointed out that there is a correction in the Agreement and it is corrected from 0.20 acres to 0.17 acres and therefore, it is a material alteration in the Agreement and on the ground, the Ex.A1/Sale of Agreement cannot be enforced.

The Trial Court has refused to grant of specific relief to the First Respondent only on the ground that Appellants 1 to 3 are entitled to 17 cents and Respondents 2 & 3 are entitled to 10 cents and totally 27 cents were agreed to sell the Suit property, but, in the schedule, apart from the above 27 cents, 3 cents also incorporated and therefore, refused to grant the relief. The First Appellate Court has discussed in detail about the averments made in Ex.A1/Agreement of Sale and finally held that Appellants 1 to 3 agreed to sell the Suit property at an extent of 17 cents and Respondents 2 & 3 agreed to sell their share of 10 cents and totally 27 cents to the First Respondent. The First Appellate Court has also held that in the Schedule, it is also stated that 3 cents to be given to Bahrunissa, but, the above said Bahrunissa has not filed any Suit or not claimed any right under Ex.A1/Agreement of Sale and the First Respondent has filed the Suit as against Appellants 1 to 3 and Respondents 2 & 3 and seeking relief of Specific Performance, only in respect of 27 cents, as agreed by both the parties and therefore, decreed the Suit.

In the instant case, in the Written Statement it is not stated that the First Respondent is not entitled to the relief of Specific Performance on the ground of any alteration in Ex.A1/Agreement of Sale. At the time of evidence also, the sole witness was examined on the side of Appellants 1 to 3 viz. Second Defendant deposed as he was not aware of the above said alteration in the Agreement. When the First Respondent has clearly stated that at the time of execution itself, the above said corrections were made, as rightly discussed by the First Appellate Court. As rightly pointed out by the learned Counsel for the First Respondent, the above said alteration is not material alteration and also Appellants 1 to 3 have not pleaded in the Written Statement and therefore, the First Respondent is entitled to Specific Performance, since it is not material alteration in the Agreement of Sale and answered first and second substantial questions of law accordingly.

Learned Counsel appearing for the Appellants would further submit that in the date of Agreement dated 10.2.1988, it is stated that only one month time was given to obtain the Sale Deed, but, the First Respondent has not taken any steps to obtain the Sale Deed within one month and the Suit is also filed only on 8.3.1991 and therefore, the First Respondent is not entitled to the discretionary relief of Specific Performance on the ground of delay.

Learned Counsel appearing for the First Respondent submitted that the First Respondent is always ready and willing to perform her part of contract and First Respondent has paid the entire sale consideration to Appellants 1 to 3 and Respondents 2 & 3. Since Appellants 1 to 3 and Respondents 2 & 3 are close relatives, they alone postponed the execution of Sale Deed and therefore, the First Respondent is entitled to the relief of Specific Performance. The First Appellate Court has discussed in detail and finally held that the Suit is relating to immovable property and therefore, time is not an essence of contract in the Agreement, there is no averment as time is essence of contract and the Appellants have not contended that they were suffered due to the above said delay and therefore, the First Respondent is entitled to the specific relief as prayed for in the Plaint. As rightly pointed out by the learned Counsel for the First Respondent that in Ex.A1/Agreement, it is not stated as time is essence of contract. Appellants 1 to 3 have also not specifically pleaded and proved that the intention of the parties is time is essence of contract.

In the instant case, the First Respondent has proved that she has paid the entire sale consideration. As already discussed, the contention of Appellants 1 to 3 is that the Agreement of Sale is executed only as a security and not with intention to sell the Suit property. Further, the First Respondent has sent legal Notice to the First Appellant to execute the Sale Deed. Considering all the above said circumstances, it is revealed that the First Respondent is always ready and willing to perform her part of contract. Only Appellants 1 to 3 and Respondents 2 & 3 alone evaded to execute the Sale Deed, as rightly pointed out by the learned Counsel appearing for the First Respondent.

The learned Counsel appearing for the Appellants relied on a decision of this Court reported in P. Arumugam v. M. Shunmugam Pillai, 2013 (3) MWN (Civil) 110, and contended that the execution of Sale Deed has been fixed as one month, but, the First Respondent has not having any interest in execution of Sale Deed and has not given any acceptable reason and therefore, the First Respondent is entitled to relief of Specific Performance.

Learned Counsel appearing for the First Respondent would submit that the facts of above case is not applicable to the facts of the present case, since in the present case, the entire sale consideration was paid on the date of Ex.A1/Agreement of Sale itself and no balance sale consideration to be paid. But, in the above said decision relied on by the Appellants, the balance sale consideration of Rs.1,50,000/- was pending and the Plaintiff in that Suit has not paid that amount and obtained Sale Deed within six months and filed a Suit, only after the lapse of two years and therefore, this Court has refused to give the relief.

As already discussed, the First Respondent has proved the Agreement of Sale/Ex.A1, as genuine document and both Courts below agreed the above contention. Further, it is proved that the entire sale consideration was paid by the First Respondent on the date of Agreements itself and the above said fact also accepted by both Courts below. The relationship between the parties also not in dispute. The First Respondent alone sent legal Notice and the Appellants have not sent any legal Notice to cancel the Agreement or not paid the admitted alleged amount of loan. In the Ex.A1/Agreement of Sale also not stated time is essence of contract. The First Appellate Court has considered the entire evidence and correctly held that the First Respondent entitled to the relief or Specific Performance, as pleaded in the Plaint. The above said findings of the First Appellate Court are not perverse or illegal and answered the Substantial Questions of Law Nos.3 to 5 accordingly. In view of the above said discussion, this Court is of the view that the First Respondent is entitled to the relief of Specific Performance as pleaded in the Plaint and therefore, this Second Appeal is liable to be dismissed.

In the result, this Second Appeal is dismissed with costs and confirmed the Decree and Judgment passed by the First Appellate Court.