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Judgment
S.S. Subramani, J.—First defendant in O.S.181 of 1995 on the file of the First Additional District Munsif''s Court, Ulundurpet is the
appellant. The facts of the case could be summarised thus:
Second defendant is the father of plaintiff. Second defendant along with his minor children including plaintiff, sold the plaint property as per Ex. A1,
dated 28.1.1982 to the appellant, who is first defendant. On the same date, Ex. A2, agreement or reconveyance was also executed. The
agreement of reconveyance was in favour of plaintiff. It is provided in Ex. A2 that in case entire consideration in Ex. A1 is paid within a period of
five years from that date, the property will be reconveyed. A token advance of Rs. 10/- was also paid and first defendant agreed to reconvey the
property on receipt of balance sale consideration.
Under Ex. A3 (i.e. Ex. B4), second defendant executed a release deed of all his rights under Ex. A2 on receipt of consideration of Rs. 300/-
plaintiff thereafter filed the present suit for specific performance of Ex. A2 alleging that Ex. A3 (B4) is not binding on him and the same is result of
collusion between defendants 1 and 2. Before institution of suit, he issued Ex. A4 notice, which was replied under Ex. A5 reply notice by
appellant. In the plaint, plaintiff also prayed for setting aside Ex. A3.
In the written statement filed by the appellant, he admitted that he has taken sale deed under Ex. A1 and also executed Ex. A2 agreement of
reconveyance. He also said on behalf of plaintiff, Ex. A3 cancellation was executed by his natural guardian second defendant. A contention was
also taken that plaint property never belonged to plaintiff or any other minor children of second defendant and the property absolutely belonged
only to second defendant, and therefore, agreement of reconveyance cannot be enforced. He further alleged that subsequent to sale, he has spent
huge amounts for improving the property by alienating other properties that belonged to him and at any rate, he is entitled to value of
improvements. He claimed Rs. 25,000/- for digging a well in the property. He also alleged that equitable relief of specific performance should not
be granted in this case. |
Trial Court took oral and documentary evidence and came to the conclusion that plaint property belongs to second defendant only. It is also
held that Ex. A3 release deed was also properly executed and plaintiff has no right to cancel or set aside the same. It further held that the right to
get reconveyance, time is the essence of the contract and suit having been filed long after the period of five years, is not maintainable. The suit was
dismissed holding that the discretion under Specific Relief Act should not be exercised in favour of plaintiff. Trial Court further held that appellant
has spent huge amounts for digging well and that too after alienating his other properties and after Ex. A3 was cancelled. Trial Court was of the
view that if specific performance is granted it will be inequitable. The suit was dismissed.
4a. The matter was taken on appeal by plaintiff in A.S.8 of 1997 on the file of Additional District Court, Villupuram. Lower Appellate Court
reassessed the entire evidence- and held that Ex. A3 is not binding on plaintiff, since it is executed only by second defendant. The second
defendant has not represented plaintiff, while executing Ex. A3 and therefore, Plaintiff could ignore the same. It further held that plaintiff even on the
date of suit was only a minor and so long as suit is not barred under Article 54 of the Limitation Act, plaintiff is entitled to enforce Ex. A2. The
lower Appellate Court further held that an agreement of sale in favour of minor is for his benefit and the same is not liable to be relinquished.
Regarding the finding of trial Court that the property absolutely belongs to second defendant, lower Appellate Court did not disturb that finding.
Lower Appellate Court also found that after Ex. A3, appellant has dug well after alienating his other immovable properties and has improved the
property. But at the same time it held, that should not stand in the way of granting specific performance and appellant can seek other legal remedies
for getting compensation. The appeal was allowed granting specific performance of Ex. A2.
The Judgment of the lower Appellate Court is assailed in this Second Appeal on the following substantial questions of law:
i) whether in law the lower Appellate Court did not err in finding that the suit was not barred by limitation?
ii) Whether in law the Lower Appellate Court was right in overlooking that the property being the separate property of the 2nd respondent he had
every right to release the appellant from the obligation to recovery of the property?
iii) whether in law the Lower Appellate Court is not wrong in overlooking that the minor had no vested right or interest in the property?
Since caveat was entered, I heard the Second Appeal at the admission stage itself, During the Course of arguments, the following substantial
questions of law were also raised by appellant''s counsel and respondent''s counsel also answered the same.
a) Whether the time is not essence of contract in agreement of reconveyance and if so, what is the consequence one the time has expired?
b) Even if suit is not barred by limitation, whether plaintiff is entitled to get specific performance if time is the essence of contract? Whether there is
delay or laches on the part of plaintiff?
c) Whether the lower Appellate Court was right in seeking aside the discretion exercised by trial Court, revising specific performance?
Plaint is drafted as if there is sale by plaintiff along with his father and on the same day, ExA2 agreement or reconveyance was also executed. I
do not find anywhere in the plaint, that plaintiff has alleged any of the ingredients u/s 16 of the Specific Relief Act. u/s 16 of the Specific Relief Act,
plaintiff has to plead and prove his readiness and willingness to take sale deed and also should show his continued readiness and willingness till
decree is passed. Absolutely, there is no pleading. Only statement in para 6 of the plaint is that he is ready to pay Rs. 7,990/- as stated in the
agreement.
Learned Counsel for appellant submitted that the finding of lower Appellate Court that Ex. A3 is not binding on plaintiff is not correct. Counsel
made two submissions in support of the said argument: (i) Ex. X3 was executed representing plaintiff also, and (ii) it is father who has taken Ex. A2
on behalf of minor plaintiff. It is referring to Ex. A2,'' Ex. A3 is executed. If that be so, finding of the Lower Appellate Court that Ex. A3 is not
binding merely because statement in Ex. A3 that he released the rights as not representing plaintiff is misreading of the document.
After considering the circumstances under which Ex. A3 was executed and also considering the position of law on that point, I feel the
submission of Learned Counsel for appellant is to be accepted.
In case of the very early decision of Privy Council reported in VI Moore''s Indian Appeals 393 (Hunoomanpersaud Panday v. Mussamat
Babooee Munraj Konweree), more or less a similar question came for consideration. There also a de facto guardian and created certain
encumbrances for the necessities of minor. But, in those encumbrances, the de facto guardian did not really state that it is on behalf of minor,
documents are executed. He claimed himself as proprietor or heir. An argument was taken that since document was executed by de facto guardian
as proprietor or as heir, is not binding on the minor. The Privy Council raised following question for consideration,
As to the validity of the mortgage Bond, whether it was executed by the Ranee at all, and further as the Bond Purported to be executed by her in
a beneficial character, if it constituted a valid incumbrance on the Raj?
Their Lordships held thus,
On the first point their Lordships think it right to observe, that it is of the utmost importance to the right administration of justice in these Courts,
that it should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience; that
the substance and merits of the case are to be kept constantly in view; that the substance and not the mere literal wording of the issues is to be
regarded. ..."" (Emphasis supplied)
Their Lordships further held thus,
Deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded
as the real meaning of the Parties which the transaction discloses. Now, what is meant by the assumption of proprietorship on the part of Ranee,
which the judgment ascribes to her? It is not suggested that she ever claimed any beneficial interest in the estate as proprietor; had she done so. it
would have been pro tanto, a claim adverse to her son; and it is conceded by the Respondent''s counsel that she did not claim adversely to her
son. The terms of ""Proprietor"" and of ""heir"", when they occur, whether in deeds or pleadings, or documentary proofs, may, indeed, by a mere
adherence to the letter, be construed to raise the conclusion of an assumption of ownership, in the sense of beneficial enjoyment derogatory to the
rights of the heir; but they ought not to be so construed unless they were so intended, and in this case their Lordships are satisfied that they were
not so intended. They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever
description she gave to herself, or others gave to her; that she must be viewed as a Manager, inaccurately and erroneously described as
proprietor"", or ""heir"", and it is to be observed, that the Collector takes this view, for, whilst he remarks on the improper description of her as heir,
or proprietor, he continues her name as ""Surberkar"". If the whole context of all these documents and pleadings be taken into consideration and the
construction proceed on every part, and not on portions of them, they are sufficient, in their Lordships'' judgment, to show the real character of her
proprietorship.
I feel that the above decision fully applies to the facts of this case. On 28.1.1982, Exs.A1 and A2 were executed. Ex. A1 was executed for
discharging various debts. It must be understood that plaintiff is not questioning the Sale Deed Ex. A1. The finding of Courts below is also that
property absolutely belongs to second defendant and it is his self-acquisition. That finding of trial Court was not disturbed by Lower Appellate
Court. It is not the case of plaintiff that second defendant is acting against the interest of family when he executed Ex. A1. On the same day, Ex.
A2 was also executed. There also plaintiff has no case that the action of second defendant was in any way injurious to family. In fact suit itself was
filed claiming right under Ex. A2. Within 15 days of Ex. A2, Ex. A3 was also executed. Within that 15 days in what way second defendant acted
against the interest of plaintiff is not explained. In the plaint, it is stated that second defendant is a drunkard and right of plaintiff has been rightly
released under Ex. A3. What is the right of plaintiff under Ex. A2? It is only an agreement for sale, or as stated in the plaint, it is agreement for
reconveyance. If it is the case of reconveyance, plaintiff will have to say that the ownership was with him originally and by virtue of Ex. A2, he is
entitled to be restored to original ownership; what is the pre-existing right at the time when Ex. A1 was executed in nowhere disclosed. The finding
is also that second defendant is the absolute owner and property is self-acquisition of second defendant.
In AIR 1958 S.C. 832 (Neelalnaktan v. Velayuthan) their Lordships held thus,
where it is stated in a deed of release that, by reason of sarvaswadanam marriage, the appellants were entitled to all movable and immovable
properties belonging to Illom and therefore the executant was executing the release deed conferring all the rights and claims they had obtained over
the Illom properties by the sarvaswadanam form of marriage, the document, in terms confirms the pre-existing rights of the appellants and where
they had no pre-existing rights the documents did not convey any right to ""them.
The same was followed by Kerala High Court in 1969 K.L.T.412 (Sarojini v. Santha Trading Co), wherein tit is held thus,
A recital in confirmation of pre-existing rights in a person, who had no such right in fact, would not convey any right in the property to him. A mere
recitals that the property belongs to both the husband and the wife will not, therefore, convey any interest in the property of the wife to the
husband.
If that be so, under Ex. A2, the only inference that can be drawn is that first defendant wanted to get reconveyance in the name of plaintiff.
Plaintiff by himself is not getting right by merely lending his name or merely because father made use of plaintiff''s name.
In 1996 (II) L.W. 1 (Pachiappan and 2 others v. S.P. Koon Mari) in para 11 of the Judgment, a Division Bench of fills Court considered the
scope of agreement of reconveyance, wherein it is held thus,
.... In the case of a sale with an agreement for reconveyance, the property, is sold by the vendor in order to get over a financial crisis. The
agreement for reconeyance of the said property at the same price at which it was sold after a certain period would itself show that the parties
agreed that there was no permanent transfer of ownership and in the event of the vendor paying the amount of consideration within a particular
date, his ownership would be restored. It has been repeatedly held that the sale, and the agreement of reconveyance form part of one transaction.
It has been construed to be an option to the vendor and an undertaking by the purchaser that he would execute a deed of reconveyance in the
event of the exercise of the option by the vendor within the stipulated period. That is why it has been held that time is the essence of the contract of
reconveyance and if the period lapsed, the vendor would lose the right to get back the property."" (Emphasis supplied)
If this is the essence of an agreement of reconveyance, who is the real beneficiary under Ex. A2? At that time, Benami Transactions
(Prohibition) Act was also not enforced. Father selling his property along with his minor children, agreed to take back the property in the name of
one of the sons, the real beneficiary is the father since it is in his ownership that is conveyed. By reconveyance, even though agreement stands in the
name of plaintiff, what the purchaser releases is the ownership of second defendant. If that be so, is not second defendant competent to execute
Ex. A3 even if we construed that Ex. A3 was executed not representing the minors. Second defendant received consideration under Ex. A3
relinquishing all his rights under Ex. A2. ,
Even assuming that plaintiff got pre-existing right, is not Ex. A3 executed on behalf of plaintiff also? In view of the decision in VI Moore''s
Indian Appeals 393 (cited supra) and from the sum and substance of Ex. A3, if the second defendant wanted plaintiff to be beneficiary under Ex.
A2 and he represented plaintiff as natural guardian and executes Ex. A3, plaintiff cannot simply ignore the same. From the various dates which I
have referred to earlier, it cannot be said that second defendant was acting against the interest of plaintiff.
As per the agreement of reconveyance, five years period has been provided to reconvey the property. It is settled law that in all cases of
agreement of reconveyance, time is the essence of the contract.
In AIR 1950 F.C. 38 (Shanmugham Pillai v. Annalakshmi), it is held thus,
.. .that the agreement reserved an option to A to repurchase the property and was in the nature of a concession of privilege of fulfilment of certain
conditions with a proviso that in case of default the stipulation should be void. A not having paid the instalments punctually according to the terms
of the contract the right to repurchase was lost and could not be specifically enforced. It was not in the nature of penalty and the Court had no
power to afford relief against forfeiture of its breach.
In Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co., in paragraphs 3 and 4 of the Judgment, their Lordships held that in cases of
reconveyance, time is always considered to be essence of contract and on expiry of time, contract itself automatically lapses. The relevant passage
read thus,
At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the
contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of
such contracts and did not regard the stipulation as to time as not of the essence of the bargain. As stated in Halsbury''s Law of England, 3rd
Edition, Vol.3, Article 281, p. 165; ""An option for the renewal of a lease, or for the purchase of re-purchase of property, must in all cases be
exercised strictly within the time limited for the purpose, otherwise it will lapse."" This passage was quoted with approval by Danckworts L.J. in
Hare v. Nicoll, 1966-2 QB 130, 145. A similar statement of law is to be found in Foa''s General Law of Landlord and Tenant, 8th Edn., Art.458
p.310, and in Hill and Redman''s Law of Landlord and Tenant 14th Ed.,p.54. The reason is that a renewal of a lease is a privilege and if the tenant
wishes to claim the privilege he must do so strictly within the time limited for the purpose.
With regard to equitable relief against the failure of the tenant to give notice of removal within the stipulated time, the law is accurately stated in
Halsbury''s Law of England, 3rd Ed. Vol.23 p.626 Article 1328 footnote (u) that:- ""Relief will not be given in equity against failure to give notice in
time, save under special circumstances"". The decided cases show that in such cases relief is not given in equity save upon the ground of
unavoidable accident, fraud, surprise, ignorance not wilful or inequitable conduct on the part of the lesser precluding him from refusing to give the
renewal. The limits of the equitable interference in such cases were clearly stated by the Master of the Rolls (Sir R.P. Arden) in Eaton v. Lyon,
(1798) 3 Ves Jun 690, 692-3: 695-6 = 30 ER 1223, 1224-1225-6. He observed:-
At law a covenant must be strictly and literally performed; in equity it must be really and substantially performed according to the true intent and
meaning of the parties so far as circumstances will admit; but if unavoidable accident, if by fraud, by surprise or ignorance not wilful, parties may
have been prevented from executing it literally, a Court of Equity will interfere; and upon compensation being made, the party having done
everything in his power, and being prevented by means, I have alluded to, will give relief .... I decide this case upon the principles on which, Lord
Thurlow decided Bayley v. Corporation of Leominister, (1972) 1 Ves 476, and I hope now, it will be known, that it is expected, these covenants
shall be literally performed where it can be done; and that Equity will interpose, and go beyond the stipulations of the covenant at law, only where a
literal performance has been prevented by the means, I have mentioned, and no injury is done to the lessor. We are of the opinion that the
stipulation as to time in Clause 3(c) of the indenture of lease dated February 17, 1954 should be regarded as of the essence of the contract. The
appellant not having exercised the option of renewal within the time limited by the clause is not entitled to a renewal.
(Emphasis supplied).
In Smt. Bismillah Begum (dead), by Lrs. Vs. Rahmatullah Khan (dead) by Lrs., the entire law was reconsidered by the Hon''ble Supreme
Court and in paras 6 and 7, it is held thus,
We may also add that in contracts relating to reconveyance of property time is always the essence of the contract as laid down by the Federal
Court in the case of Shanmugam Pillai v. Annalakshmi Ammal and also laid by this Court in Caltex (India) Ltd. v. Bhagwan Devi Marodia. The
relevant passage in the judgment of this Court in Caltex (India) Ltd. at p.407 in para 3 reads as follows: -
At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the
contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of
such contracts and did not regard the stipulation as to time as not of the essence of the bargain. As stated in Halsbury''s Law of England, 3rd Edn.,
Vol.3, Article 281, p.165:
An option for the renewal of a lease, Or for the purchase or repurchase of property, must in all cases be exercised strictly within the time limited
for the purpose, otherwise it will lapse.
This passage was quoted with approval by Danckwerts L.J. in Hare. v. Nicoll. QB at p. 145. A similar statement of law is to be found in Foa''s
General Law of Landlord and Tenant, 8th Edn., Art. 453, P.310, and in Hill and Redman''s law of Landlord and Tenant, 14th Edn., p.54. The
reason is that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege he must do so strictly within the time limited for the
purpose.
The above passage refers both to options for renewal and options to repurchase where, in regard to immovable property, as a matter of law
time becomes the essence of the contract. Therefore in regard to contracts of reconveyance relating to immovable property the principle laid down
in A.H. Mama v. Flora Sasson - that time is nor normally the essence of the contract in contracts relating to immovable property - does not apply.
It is in fact, so observed in Caltex (India) Ltd. case. In view of the above said decision of this Court relating to contract of reconveyance, and in as
much as the amount was not paid within the stipulated time, the said option in favour of the plaintiff must be deemed lo have ""lapsed"".
The same view was expressed by a Division Bench of this Court in the decision reported in 1996-2-L.W.l (Pachaiyappan v. S.P. Koon Mari)
(cited supra) and also in the decision rendered by me in the decision reported in 1996-2-L.W.417 (Gowrammal @ Gowri v. Pechimuthu).
Lower Appellate Court did not consider this question and simply said that the suit is not barred by limitation under Article 54 of the Limitation
Act. In a case of reconveyance, we are not concerned about its limitation. The Court is only concerned whether the terms'' and conditions of
agreement of reconveyance have been fully complied with. The suit was filed long after expiry of five years and there is no explanation why the suit
could not be filed within the period of five years even if Ex. A3 is to be ignored. The minority of plaintiff cannot be a reason put forward in such
cases. Even at that time, parties are aware that plaintiff will continue as minor on the expiry of five years and it was knowing fully well, agreement
for reconveyance was entered into for the period of five years. If an agreement lapses on the expiry of five years, minority of plaintiff will not revive
the agreement which has already come to an end.
Even in the case of an ordinary agreement for sale, their Lordships of Honourable Supreme Court have recently held that the time provided by
the parties for the performance is not to be ignored even though lime is not made essence of the contract. The same is reported in K.S.
Vidyanadam and Others Vs. Vairavan, Relevant portion in paragraphs 10 and 11 reads thus,
It has been consistently held by the Courts in India, following certain English decisions, that in the case of agreement of sale relating to
immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the
Limitation Act for filing a suit is three years. From these two circumstances, it docs not follow that any and every suit for specific performance of
the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed with the period
of limitation notwithstanding that time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would
amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it
be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and
can be ignored with impunity? It would also mean denying the discretion vested in the Court by both Sections 10 and 20. As held by a Constitution
Bench of this Court in Chand Rani v. kamal Rani; (SCC p.528, para 25).
.....it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of
the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?); (1) from the express
terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the
contract.
In other words, the Court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether
its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices
have been going up sharply, over the last few decades - particularly after 1973.
...The Learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says rise
in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstances but they have also specified six
months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the
contract but it must yet have some meaning. Not for nothing could such time- limit would have been prescribed, can it be stated as a rule of law or
rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or
meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the Court should also bear in mind that
when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-
limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
(Emphasis supplied).
The period expired in February, 1987 and there is no explanation why the suit was filed in 1989 and that too after expiry of two years after
expiry of the term. As declared by the Hon''ble Supreme Court, merely because the suit is not barred by limitation, ''it does not follow that the
discretion must also be exercised in granting specific performance. Time fixed by the parties for the purpose of contract will be a relevant factor for
exercising discretion. If that is the case of an ordinary agreement of sale, in the case of agreement of reconveyance, the same will have to be strictly
construed while exercising the discretion. In the case of agreement for reconveyance, the agreement lapses on the expiry of period and can in such
cases, discretion can be exercised in favour of plaintiff? Lower Appellate Court did not consider any of these facts and simply held that since
plaintiff is a minor and suit is not barred u/s 54 of the Limitation Act, discretion must be in favour of plaintiff. That reasoning of the lower appellate
Court is against all the settled legal principles.
I have already said that Ex. A3 was executed by second defendant on behalf of plaintiff also. I have also held in the earlier paragraphs of this
Judgment that plaintiff has also not proved that second defendant is acting against the interest of plaintiff and Ex. A3 is, not liable to be ignored.
Even if it is construed that it is only voidable transaction, is not plaintiff bound to return Rs. 300/-. which was received from second defendant
under Ex. A3?.
Similar case came up for consideration in the decision of this Court reported in 1981(2) MLJ 244 (G.R. Radhakrishnan v. Rani Ammal). That
is also a case between father and two sons executed a conveyance and took an agreement of reconveyance,. Few months after execution of
agreement of reconveyance, two of the plaintiffs executed release deed on receipt of consideration. Father, who had also right of reconveyance
executed a Will by which right of reconveyance was also bequeathed in favour of first plaintiff and children of plaintiffs 2 and 3 in the suit. All of
them filed a suit for specific performance on the basis of agreement or reconveyance. It was partly decreed. Against that part of the decree
defendant did not file appeal and that became final. That portion of the decree, that want against plaintiff, he came in appeal and that came before
this Court. While considering the same, learned Judge held how discretion should not be exercised in favour of plaintiff in the suit. One of the main
reason was that plaintiff did not offer to return the amount for releasing the rights. In para 6 of the Judgment, it is held thus,
...In granting an equitable relief I could not ignore these payments by the defendant to plaintiffs 2 and 3 which are not disputed. Naturally,
therefore, the value of the properties of the defendant is much more than what he agreed for at the time when he executed the reconveyance. The
plaintiffs have never offered to reimburse the defendant the amount which they had received with or without interest arid the equitable relief,
therefore, could not be claimed by the plaintiffs in this suit. The plaintiffs are not therefore entitled to any decree for specific performance and the
suit, was, therefore, liable to be dismissed....
In this case plaintiff never offered to return the amount of Rs. 300/- received from second defendant and the document executed on behalf of
plaintiff.
It is well settled that u/s 20 of the Specific Relief Act, specific performance is refused if it is found to be inequitable. After, Ex. A3 was
executed, the appellant was under bona fide belief that he is entitled to effect, improvements. He sold other items of immovable properties
belonging to him, and he has dug a well spending Rs. 25,000/- and has improved the property. The value is much higher as on date. Both the
Courts below have found that appellant has dug a well alienating his assets. When appellant put forward a claim that he is entitled to improvements,
Lower Appellate Court rejected it. While granting specific performance, is not that matter also to be a point for consideration while exercising
discretion? why should the appellant be forced to file another suit after he being dispossessed? I feel that will be unfair and inequitable on the part
of the Court in granting Specific performance in such cases. Plaintiff had only option to purchase the property. That option was not availed within
that time. He exploited his position as minor, but at the same time, appellant will be put to great hardship which he did not forsee at the time the
agreement was executed.
Trial Court rightly held that the discretion should not be exercised in favour of plaintiff. While sitting in appeal, lower Court should have
considered whether discretion exercised by trial Court is proper or not. Even in the case of an ordinary agreement for sale, specific performance
cannot be claimed as a matter of right and Court is also not bound to grant specific performance merely because it is lawful to do so. Trial Court
has given certain reasons why it did not exercise such discretion. Power of the Court in regard to discretion to be exercised by trial Court is
considered in S.C. Banerjee''s Law of Specific Relief (Tenth Edition) at page 329 thus,
....The section does not, however, define, the principles upon which the appellate Court may interfere. But it may be taken that the appellate
jurisdiction is also based on similar grounds of equity. Where the trial Court refused to exercise discretion the appellate Court cannot order specific
performance when no material facts are shown to come to a different conclusion. As a matter of practice it is considered undesirable normally to
interfere except on grounds of law or if, on other grounds, the impugned decision would result in injustice being clone. In the latter case, the
appellate Court must be held to have both the power and duty to give a remedy. Hut an appellate Court will not be disposed to interfere, except in
a strong case, e.g., where -
(a) the first court has declined to exercise any discretion, or
(b) has manifestly proceeded on a wrong ground or principle, or
(c) on an erroneous opinion on a point of law, or
(d) acted perversely, arbitrarily or extra judicial principle."",
In the result, my conclusion in the Second Appeal are, that the suit is not barred by Limitation, Ex. A3 release deed is not liable to be ignored
as contended by plaintiff, and merely because plaintiff happened to be minor, he cannot have absolute right for reconveyance. It has to be held that
time is the essence of contract in the case of agreement of reconveyance and agreement lapses immediately after expiry of the period. The minority
of plaintiff cannot be a ground to revive an agreement is already lapsed. The discretion exercised by trial Court is not liable to be lightly interfered
with as is done by the Lower Appellate Court and Lower Appellate Court has not followed the well established judicial principle while upsetting
the discretion exercised by the trial Court. It is further found that the grant of specific relief will be inequitable and will put defendants in hardships.
In the result, the Second Appeal is allowed by setting aside the Judgment of Lower Appellate Court in A.S.8 of 1997 on the file of Additional
District Court, Villupuram. Decree and judgment in O.S.181 of 1995 on the file of First Additional District Munsifs Court, Ulundurpet is restored.
Appellant is entitled to costs throughout. Consequently, C.M.P. No. 11843 of 1999 is closed.