Kumarasamy and Others vs S.K. John (died) and Others

Thangamani, J.—The appellants are defendants before the trial court. The first respondent/plaintiff instituted O.S. No. 104 of 1984 on the

file of learned subordinate Judge of Poonamallee for specific performance of Ex.A-1 agreement dated 19.9.1982 alleging that the appellants

undertook to convey the suit property measuring 1 acre and 84 cents in his favour for a sum of Rs. 1,85,000 and that they had received Rs.

15,000 as advance on the same date. Possession was also given to him pursuant to the sale agreement. They permitted him to make lay-outs of the

property and also to negotiate with third parties for the sale of the land. They also agreed to receive the balance of sale consideration and register

the document with in a period of one year. After taking delivery of possession he got the lands measured in January, 1983 in the presence of the

first appellant. Since the sale did not fructify, notices were exchanged between the parties as per Ex.A-1 dated 11.1.1983, A-5 dated 19.1.1983,

A-6 dated 21.1,1983, A-7 dated 3.2.1983, A-8 dated 5.1.1983, A-11 dated 17.2.1983, A-15 dated 10.10.1983. The mediation also did not

yield any result. The first respondent was always ready and willing to perform his part of the obligation as per the agreement.

Appellants 1 and 2 are father and son. They denied that they entered into any agreement with the first respondent to sell the suit property for Rs.

1,85,000 on 19.9.1982 or at any time and that they received Rs. 15,000 as advance. They pleaded that the first respondent contacted them for

the sale of a piece of land measuring 40 cents at Thandurai Village. They were asked to come to Sub Registrar''s Office at Poonamallee on several

occasions to execute the sale deeds in the name of the nominees of the first respondent. On that occasion they affixed their signatures on various

papers on account of trust and confidence reposed by them in the first respondent. They were under only in respect of the sale of the said 40 cents

of land. For the sale of that piece of land they were paid on the whole a sum of Rs. 16,500. The first respondent appears to have fabricated Ex.A-

1 agreement taking advantage of his undue influence over the appellants. The first respondent was never given possession of the suit property either

in January, 1983 or at any time. These appellants never permitted the first respondent to form lay-cuts in that land. Instead in pursuance of Ex.B-5

agreement they delivered possession of the suit lands to the third appellant for plotting out them into house sites. The original title deeds of the

property were also delivered to the third appellant along with Ex.B-5 on 10.9.1982.

The trial court found that Ex.B-5 agreement should have been brought into existence subsequent to Ex.A-1 by utilising the stamp papers

containing a date anterior to that of Ex.A-1 and that it cannot prevail over Ex.A-1 agreement which is a genuine one and accordingly decreed the

suit as prayed for with costs granting the relief of specific performance in favour of plaintiff. Aggrieved by the said judgment and decree of the court

below, the defendants have come forward with the present appeal.

Ex.A-1 purports to be the agreement dated 19.9.1982 executed by appellants 1 and 2 in favour of the first respondent undertaking to convey

the suit property in his favour for Rs. 1,85,000. The deed also recites that a sum Of Rs. 15,000 has been paid as advance and the sale is to be

completed within a period of one year from the date of receipt of the balance sale price of Rs. 1,70,000. The first respondent as P.W.1 speaks

about payment of Rs. 15,000 as advance and the execution of the sale agreement by appellants 1 and 2. Though the sale agreement is silent,

P.W.1 swears that possession was delivered to him subsequent to the execution of the agreement. P.W.2 Venugopal, a former village Munsif, is

the scribe of Ex.A-1. P.W.3 Subramani is an attestor to the agreement. Both of them swear about the execution of Ex.A-1 at the residence of

P.W. 1 first respondent by appellants 1 and 2 and the payment of Rs. 15,000 as advance. Nothing has been elicited in the cross-examination of

these witnesses as to why their testimonies should not be accepted. No doubt all the three attestors to Ex.A-1 are not examined. But there was no

question in the cross-examination of P.W. 1 relating to these attestors. Since the evidence of P.Ws.2 and 3 is acceptable, the case cannot be

rejected because other persons have not been examined.

Even the appellants 1 and 2 in their pleadings do not deny their thumb impression and signature in Ex.A-1 agreement. They would only say that

in connection with the sale of another piece of land measuring 40 cents, they were constrained to affix their signature and thumb impression on a

number of papers and the first respondent has fabricated Ex.A-1 agreement by utilising one such paper. But in the witness box, the first appellant

as D.W. 1 merely states that he sold 40 cents of land to the first respondent and the sale-deed was registered at the Registrar''s Office at

Poonamallee. He never entered into any agreement with the first respondent. This witness nowhere deposes that he had signed on a number of

sheets along with the second appellant and handed them over to the first respondent. Besides there is practically no evidence to substantiate the

plea of the appellants that there was any exercise of fraud, or misrepresentation on the part of the first respondent in getting Ex.A-1 agreement

executed. The onus is on the appellants 1 and 2 to explain how their signatures are found in Ex.A-1. The explanation offered by them is not proved

to be true. Both the appellants are worldly wise though they are not educated. Both are employed. D.W.1 admits that he is a former employee of

vehicle department. The second appellant is an employee of Madras Electricity System. So the claim of the appellants that first respondent played

fraud on them and obtained their signature and thumb impression on blank papers representing that they were required for the purpose of sale of

another piece of 40 cents land cannot be accepted.

D.W.1 further states that he entered into Ex.B-5 agreement with the third appellant on 10.9.1992; to sell the suit property to him. Though the

averments in the written statement are to the effect the pursuant to Ex.B-5 agreement, he delivered possession of the suit property to the third

appellant and handed over the original title deeds, in the witness box he is conspicuously silent on this aspect. In the cross-examination, it was

elicited from him that he handed over the title deeds to the third appellant as per the recital in Ex.B-5. Even in his chief examination he merely states

that the advance was paid by the third appellant to his wife. He does not know what was the amount paid as advance. Though he claims to have

handed over three prior title deeds and three patta books to the third appellant pursuant to the sale agreement, he has not chosen to say what are

those documents. He does not even say that the title deeds handed over by him to the third appellant are Exs.B-1 to B-4. In cross-examination he

admits that he does not know that was the price under which he undertook to sell the lands. He does not know what was the rate per cent under

Ex.B-5. This would indicate that he was merely a tool in the hands of the third appellant and he does not know anything about Ex.B-5 agreement.

The third appellant as D.W.2 deposes that on 10.9.1982 appellants 1 and 2 undertook to convey the suit land to him and executed Ex.B-5 in

his favour. D.W.3 Chandrasekar attestor to Ex.B-5 speaks about the execution of the document by, appellants 1 and 2 and the payment of

advance of Rs. 5,000 to them by D.W.2 and on the strength of the evidence of these two witnesses learned Counsel for the appellants argued that

Ex.B.5 came into existence on 10.9.1982 which is prior to Ex.A-1 in point of lime and hence the trial Court erred in granting the relief of specific

performance in favour of the first respondent relying on Ex.A-1.

Now let us examine whether Ex.B-5 agreement would have come into existence prior to Ex.A-1 agreement. No doubt, the stamp paper for

Ex.B-5 has been purchased in the name of the first appellant on 10.9.1982. But that itself cannot positively establish that this agreement is prior to

Ex.A-1 in point of time. The notices exchanged between the parties assume much importance in this case. Ex.A-2 is the copy of the notice issued

by the first respondent to appellants 1 to 3 on 11.1.1983 stating that appellants 1 and 2 have executed Ex.A-1 agreement in his favour, received a

sum of Rs. 15,000 as advance and permitted the first respondent to form layouts in these lands and also to negotiate to sell them to various parties.

While so, he understands that in contravention of the agreement, appellants 1 and 2 are making arrangements through the third appellant to sell the

lands to third parties. So he has called upon appellants 1 and 2 not to alienate their lands to any third parties contrary to Ex.A-1 agreement. Ex. A-

5 is the reply notice sent by appellants 1 and 2 on 19.1.1983. In this reply they denied the execution of Ex.A-1 and alleged that by utilising the

signatures and thumb impressions obtained from them in connection with the sale of a piece of land measuring 40 cents, the sale agreement Ex.A-1

could have been concocted. Significantly enough in this notice they have taken the stand that they have nothing to do with the third appellant viz.,

Janakiraman and they have not made any arrangements to sell their lands through him. Had really Ex.B-5 agreement come into existence on

10.9.1982 as claimed by the appellants, certainly mention would have been made about the same in this reply notice. The assertion in this reply

notice that the third appellant Janakiraman has nothing to do with appellants 1 and 2 runs counter to the genuineness of Ex.B-5 agreement. On

21.1.1983 as per Ex.A-6 the third appellant Janakiraman has given his reply stating that the first respondent appears to have entertained

unnecessary suspicion against him. The fact that the first respondent is called, upon in this notice to tender his unconditional apology for having

issued the original of Ex.A-2 notice Itself indicates that Ex.B-5 agreement could not have been in existence at that time. Ex.A-7 is the lawyer''s

notice dated 3.2.1983 issued by appellants 1 and 2 to the first respondent. In this notice also they state that taking advantage of the ignorance and

illiteracy of appellants 1 and 2 the first respondent has obtained their thumb impression and signature on a number of papers on the representation

that they were required for the sale of 40 cents of land. They have called upon the first respondent to return all the papers containing their thumb

impression and signature. This notice also does not refer to the execution of Ex.B-5 agreement in favour of the third appellant on 10:9.1982 in

respect of the suit land. Ex.A-11 is the rejoinder sent by the appellants 1 and 2 on 17.2.1983 to the reply notice sent by the first respondent under

Ex A-8. This notice also 4s silent on the existence of Ex.B-5 agreement. Ex.A-12 is the copy of another lawyer''s notice passed from the first

respondent to the appellants 1 to 3 stating that he was ready and willing to carry out the terms of Ex.A-1 agreement and calling upon the

appellants, to comply with the terms of the agreement within a week. Ex.A-14 is the reply issued by appellants 1 and 2 on 16.5.1983, They

expressly state that the allegation that they have made arrangements with the third appellant to sell the lands to him is absolutely false. The third

appellant has not chosen to give any reply to Ex.A-12. Some five months later, he has issued Ex.A-15 notice on 10.10.1983. Only in this notice he

reveals for the first time that appellants 1 and 2 have executed Ex.B-5 agreement in his favour on 10.9.1982. So it is crystal clear that Ex.B-5 is

only a latter invention prepared by utilising old stamp papers for the purpose of depriving the rights of the first respondent under Ex.A-1, It is also

significant to note that written statement of defendants 1 and 2 as originally filed does not refer to Ex.B-5; Even the written statement of the third

appellant remains silent on this aspect. In fact appellants 1 and 2 categorically allege in their original written statement filed by them, on 4.12.1983

that they have no intention of selling the suit property. This belies their claim that early as on 10.9.1982 they had entered into Ex.B-5 agreement

undertaking to sell the suit properties to the third appellant. Learned Counsel for the appellants has not eared to seriously assail the findings of the

court below on Ex.A-1 and Ex.B-5,

P.W.1 states in the witness box that appellants 1 and 2 handed over possession of lands to him pursuant to Ex. A-1 agreement though the

agreement makes no mention of it. It is in the evidence of D.W.2 the third appellant that when he attempted to measure the lands after removing

the shrub on the land for the purpose of planting demarcation stones, the first respondent objected to the same. Since the demarcating stones were

admittedly in existence they should have been planted only by the first respondent as claimed by him Admittedly appellants 1 and 2 are not in

possession as they claimed to have handed over possession to the third appellant. The third appellant could not do anything on the land as the first

respondent obstructed him. D.W.1 states that the third appellant planted stones two or three years back and he was prevented when he tried to do

so again. Whereas the third appellant as D.W.2 deposes that when he tried to measure the land, the first respondent obstructed him from doing so.

He does not support the version of D.W.1. Thus the existence of measurement stones on the land is admitted by D.W. 1. The only inference is that

the version of P. W.1 that possession was given to him is true.

Learned Counsel for the appellants argued that Ex.A-1 contract is unilateral in character. It has been executed by appellants 1 and 2 in favour

of the first respondent undertaking to convey the suit lands on receipt of the balance of sale consideration within a period of one year. The first

respondent is not a signatory to this agreement. So there is no mutuality between the parties to the contract. In support of this contention, learned

Counsel for the appellants relied on the decision in Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma, , wherein an agreement

for sale of property was unilaterally executed by the vendor and towards sale consideration a pronote, liable to become time barred, was executed

by the vendor and the pronote had become time barred on the expiry of the term fixed for execution of sale deed. Held there was no mutuality

between the parties and the agreement could not be termed as a contract in the circumstances of the case and specific performance could not be

granted. But the facts in that case are different. There the pronote which ultimately became time barred was executed in consideration of the

agreement. Learned Judge has found that there was nothing which the defendant could have enforced in case of breach by the plaintiff except the

pronote which was liable to become time barred and which actually became time barred on the expiry of the time fixed in the agreement. In K.

Sheik Adham Sahib (died) v. A. Maruthamuthu Pillai (1986) 2 M.L.J. 367, Swamikannu, J., has held that a contract to be specifically enforced by

the court, must be as a general rule, be mutual. The doctrine of mutuality means that the contract should be mutually enforceable by each party

against the other and not that right for right, there must be a corresponding clause. A contract may contain a series of clauses and covenants which

form the total bargain each of which is a consideration for the other. Mutuality does not mean equality and exact arithmetical correspondence. It

means that each party must have the freedom to enforce rights under the contract against the other. The Specific Relief Act does not anywhere

repudiate the doctrine of mutuality. So mutuality means that each party must have the freedom to enforce the rights under the contract against the

other. But u/s 20(4) of the Specific Relief Act the court shall not refuse to any party specific performance of the contract merely on the ground that

the contract is not enforceable at the instance of the other party. In Nanak Builders and Investors v. Vinod Kumar Alag AIR 1991 Del. 315, as

per the agreement for sale on receipt of part of consideration the vendor had to hand over possession of the land to the vendee. It was argued on

behalf of the vendor that thereafter there was no security for him that he would receive the balance sale consideration. Lack of this opportunity

showed that the agreement suffered on account of lack of mutuality and was, therefore, unenforceable. The appellant also relied on the decision of

this Court in K. Sheik Adham Sahib (died) v. A. Maruthamuthu Pillai (1986) 2 M.L.J. 367 referred to above. Held on facts, that the argument of

the defendant does not appear to be sound. 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. There is no plea of undue

hardship to the appellants and unfair advantage to the plaintiff as contemplated u/s 20(2) of the Specific Relief Act. The circumstances stated

above are not present in the present case.

Yet another argument advanced by learned Counsel for the appellants is that first respondent/ plaintiff has not come to this Court with clean

hands. He is said to have tendered false deposition regarding the prior sale transaction of 40 cents of land. No doubt, his evidence reads that he

did not sell any land on behalf of appellants 1 and 2, But he has accepted in the notices as well as in the plaint the role played by him in the earlier

transaction. So his deposition cannot be contrary. He has stated that he acted like a broker to them and he did not execute any sale on their behalf.

His evidence that he does not know the particulars by which the first appellant sold his other lands may not relate to Ex.B-1 to B-4. We are not in

a position to know what was the exact question to which he gave the above answer. His evidence that he does not know the rate per cent could

only mean that he was aware of the total consideration only and not the rate per cent. In many sale transactions, the price is fixed at one lump sum.

Learned Counsel for the appellants also commented upon the case of Panchayat set-up in the plaint. The allegation therein is to the effect that there

was a mediation in the village comprising of 8 persons and before them the appellants 1 and 2 admitted the suit agreement and agreed to fulfil their

obligation. During the trial of the suit he made no endeavour to prove the Panchayat. However, it is his version in the witness box that there was a

Panchayat after receipt of Ex.A-2 notice. Merely because he has not chosen to examine Panchayatdars, it cannot be that he has made a false

statement. The Panchayat would, if proved, may be a piece of evidence in support of the main case. But the failure on the part of the plaintiff to let

in any evidence to prove the Panchayat will not disprove the main case, if it is established by evidence on record. It will not disentitle him to the

equitable relief of specific performance.

So we find no merits in this appeal and hence it is dismissed with costs.