M. Selvaraj vs P. Kumariah and Others

V. Ramaswami, J.—The suit out of which the present appeal arises, was filed by the five respondents herein praying for a decree for specific

performance of an agreement to sell dated 6.12.1980 executed by the appellant in their favour, agreeing to sell the properties bearing S. No.

141/2 measuring 2 acres 33 cents in S. No. 141/3 and 9 cents in S. No. 141/4 B measuring 7 cents, in all 2 acres 48 cents situate in Koyambedu

village, Madras-107. The plaintiff''s case is that the defendant is the owner of the suit properties, that he entered into an agreement for sale of the

same with the plaintiffs on 6.12.1980 for a sum of Rs. 2,91,000, that on the date of the agreement a sum of Rs. 35,000 was paid as advance and

two other amounts of Rs. 6,000 and Rs. 50,000 were paid on 19-1-1981 and 5.3.1981 respectively towards the sale price. The further case was

that the sale deed has to be completed within six months, that the defendant-appellant has to satisfy the lawyer of the plaintiffs about the title of the

defendant to the properties and also he should obtain a certificate from the Urban Land ceiling authority to the effect that the properties agreed to

be conveyed are within the ceiling limits of the defendant. Though the plaintiffs have been ready and willing to perform their part of the contract and

they were also having in hand the balance amount of Rs. 2,00,000, the defendant had not executed the sale deed. Hence, they have filed the suit

for specific performance.

The defendant contended that he was unable to prove his exclusive title to the properties and was also not able to get certificate from the Urban

Land ceiling authorities to the effect that the land was within the ceiling limit and in those circumstances, the plaintiffs have agreed to take back the

amount advanced and treat the agreement as cancelled. Hence, there is no agreement to sell. He also contended that the suit properties bearing S.

Nos. 141/2, 141/3 and 141/4 were the ancestral properties in the hands of the defendant in which his four minor sons, Marimuthu, Babu,

Loganathan and Kumar, have definite shares and interest and that he has valid title to convey only to an extent of 1/5th share in the suit properties.

He further pleaded that without impleading the minors as parties to the suit, the suit is bad for nonjoinder of parties. The further plea of the

defendant was that the plaintiffs were never ready and willing to perform their part of the contract. His case was that as per the agreement dated

6.12.1980, only an extent of 2 acres and 4 cents was agreed to be conveyed, but the plaintiffs have been demanding the defendant to execute a

sale deed in respect of an extent of 2 acres 48 cents. Even in the plaint, they have claimed that they are entitled to specific performance in respect

of 2 acres and 48 cents, and hence they could not be said to be ready and willing to perform their part of the contract. In fact, the defendant

further contended that the plaintiffs had fraudulently tampered with the agreement by forging it as if the agreement covered the total extent of two

acres and 48 cents. His further case was that the plaintiffs were never ready to perform their part and complete the transaction that they have

neither the facility to command the payment of the balance of consideration nor had money and that, therefore, they are not entitled to a decree for

specific performance. It was also their further case that since rights of innocent minor children are involved, the court cannot give the equitable relief

of specific performance even if the plaintiffs had made out a case of an enforceable contract.

The learned singe Judge who tried the suit held that there is nothing to show that the suit properties are the ancestral properties or that the

defendant has got minor sons or that they are entitled to any share in the properties. The learned single Judge was further of the view that the

defendant, as the kartha of the joint family, is entitled to sell the property for discharging the antecedent debts and legal necessity and that,

therefore the defendant cannot resist the suit. The learned Judge was also of the view that the agreement between the plaintiffs and the defendant to

treat the sale as cancelled is not true. He held that though the defendant was not able to satisfy his title to the properties and he was not able to

produce the clearance certificate from the Urban Land ceiling authority, the agreement was still in force. The learned Judge also held that the

plaintiffs were ready and willing to perform their part of the contract, that the demand for execution of the sale deed in respect of 2 acres 48 cents

instead of 2 acres 4 cents was only a mistake and that the plaintiffs were entitled to a decree for specific performance in respect of 2 acres 4 cents

on payment of the balance of the sale consideration of Rs. 2,00,000. In that view, the suit was decreed subject to the modification relating to the

extent. It is against this judgment, the present appeal has been filed.

The first point that arises for consideration is as to whether the properties in the hands of the defendant are the ancestral properties and that,

therefore, the plaintiffs cannot get a decree for specific performance. If at all, they can ask for specific performance only in respect of the l/5th

share belonging to the defendant. Before the suit was filed, the mother of the minor children issued a lawyer''s notice on 15.6.1981, on behalf of

the minors contending that the suit properties were purchased by the father of the defendant that the properties are the ancestral properties, that

there was no necessity for the sale of the properties and that the defendant has no right to convey or encumber the share of the minors. It was also

contended that the two wives of the defendant have got maintenance right against the defendant and also for the marriage expenses of their minor

daughters. Therefore, they called upon them not to meddle with the minors'' properties on pain of legal proceedings. A reply was sent to this notice

by the plaintiffs'' lawyer on 23-6-1981, contending that the agreement entered into by the defendant with the plaintiffs is for the benefit of the family

as the family can never dream of getting nearly three lakhs for the lands purchased for Rs. 1000 or so, from which the family has not derived any

benefit or income so far as it is completely barren. Suffice to say that the agreement entered into by Mr. Selvaraj is binding on the family and a suit

is filed for specific performance."" The notice and the reply were prior to the filing of the suit. There was no allegation in the plaint that the agreement

entered into by the defendant was for the benefit of the family or that it will be binding on the minors. It may also be mentioned that there was no

denial in this reply notice or in the plaint that the defendant has children or that the properties are the ancestral properties in the hands of the

defendant.

The defendant examined himself as D.W. 1 and in his evidence he had stated that the suit properties were purchased by his father Munuswami

Naicker under two sale deeds of the year 1951 and 1952 and that at present they belong to him and his four minor children namely Marimuthu,

Babu, Loganathan and Kumar. There was no cross-examination on this part of the evidence. Nor is there any statement in the evidence of P.W. 1,

that the properties were not purchased by the father, Munuswami Naicker nor has the defendant any minor children. In the written statement itself

the defendant had stated that he has four minor children giving the names of the minor children also and that they have equal interest in the

properties and an issue was also framed as to whether the plaintiffs are not entitled to the relief of specific performance for the reasons stated in the

additional written statement, viz., that the defendant''s minor sons have interest and share in the suit properties and that they are not parties to the

suit. It may also be mentioned that there is evidence to show that the original documents have been lost due to a fire accident and therefore the

plaintiffs were supplied with registration certified copies of the original title deeds. This is also accepted by the second plaintiff in his evidence as

P.W. 1 The certified copies of the documents in the name of the father of the defendant which were handed over to the plaintiffs had not been

produced by the plaintiffs. In spite of this, the learned Judge in his judgment observed that there is nothing to show that the suit properties are the

ancestral properties or that the defendant has got minor sons and that they are entitled to any share in the properties. We are at a loss to

understand how the learned Judge can come to this conclusion at all. The facts that the properties were purchased by the father of the defendant in

1951 and 1952, that the defendant had four minor children whose names were set out both in the lawyer''s notice issued by the guardian of the

minors and in the written statement and that the certified copies of the title deeds relating to the properties were handed over to the plaintiffs were

never in dispute. Therefore, the assumptions of the learned Judge that there is nothing to show that the suit properties are the ancestral properties

of the defendant or that the defendant had got minor sons are not correct, and cannot be accepted. The facts clearly establish that the properties

were the ancestral properties in which the minors have got 4/5th share and the defendant has got only l/5th share. It may also be mentioned that

neither there is any pleading in the plaint that the sale was for necessity or binding purposes nor the minors are also bound by the agreement to sell.

In the face of this, the learned Judge''s assumption that there was a necessity for the sale in view of the fact that the defendant had pleaded an

earlier agreement to sell to meet the family expenses was to say the least, unacceptable. In fact, the learned counsel for the respondents did not

want to support the case on the ground that there was any family necessity or binding purpose for the sale of the minors'' share.

Learned counsel for the respondents, however, raised a contention that even if the minors had any interest in the properties, the respondents are

entitled to get a decree for sale of the properties by the defendant in respect of the entirety leaving open the question whether it will be binding on

the minors. In other words, according to learned counsel, the minors will have to be left to question the sale deed after the defendant executes the

sale deed on the ground that it is not binding on them and that it was not necessary for them either to ask that the defendant has a saleable interest

in the entirety of the properties or that the minors have no interest. In support of his contentions, he relied on a judgment of this Court reported in

Palanisami v. Komara Chettiar 62 L W. 722= AIR 1950 Mad. 90. It was held in that case--

Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there is

no necessity to determine the question of the vendor''s title, and the fact that the title which the purchaser may acquire might be defeasible by a

third party (for instance the sons of the vendor being entitled under Hindu Law to shares in the property) is no ground for refusing specific

performance if the purchaser is willing to take such title as the vendor has.

It is true that this Court, if it had any equity in favour of the plaintiffs, could grant the relief in the form given in that decision. We may also refer to a

Full Bench decision of this Court reported in Balusami Aiyar v. Lakshmana Iyer 13 L.W. 562=1. L.R. 44 Mad. 605(F.B.). In that case, it was

held that the managing member of a joint Hindu family, who, for purposes not binding upon the other coparceners and without their concurrence,

agreed to convey a specific item of joint family property, cannot ''perform'' his contract in its entirety and that the purchaser in such a case cannot

enforce specific performance of the entire contract. But courts will grant specific performance by a conveyance of the share which the vendor had

in the property at the date of the contract, if the purchaser elects to pay the entire consideration, and the share should be specified in the decree.

We may also refer to another judgment of a Division Bench of this Court reported in Venkatakrishna Reddi v. Amar Babu. 85 L.W. 99--1971-2-

M.L.J. 466. In that case, though the learned Judge found that the agreement to sell was for the benefit or necessity it was held that it is not

necessary to grant the discretionary relief of specific performance. We may usefully quote a passage in paragraph 25 of that judgment and that

reads--

It is well established that the existence of a valid and enforceable contract cannot in itself deprive the court of its discretionary power to refuse to

enforce the contract, if the supervening circumstances obviously affect the interest of the minors. In all transactions affecting a minor there is at

paramount duty resting on the Court not to put its seal on transactions affecting his interest. Therefore, though the contract might be valid and

otherwise enforceable if at the time the court is asked to enforce it, it transpires that the circumstances have so changed that it would obviously be

unjust and detrimental to the interests of the minors to enforce it, the court may well in the exercise of its discretion refuse to give a decree for

specific performance.

Another Division Bench of this Court in the case reported in Rathnasabapathi Pillai v. Sriramulu Chettiar 99 L.W. 239 (D.B.), dealt with the

question exhaustively and considers almost all the relevant judgments. After finding that even where the joint family consists of adults and minors

and the adults have consented to the alienation by itself is not proof of legal necessity, though such consent may have probative value, the learned

judges observe thus:--

Even in cases of such sale, the purchaser is bound to enquire into the necessity for the sale. The burden lay on the plaintiff to prove either there was

a legal necessity, in fact, or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to

satisfy himself as to the existence of such necessity.

The learned Judges further observed--

The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief because it is lawful to do so.

In this case, as already stated, it is known that the properties are the ancestral properties and that the minor sons of the defendant have got 4/5th

share in them. Courts are enjoined to protect the interest of the minor children. It is not the case of the plaintiffs, as already stated, that if the minor

children have any interest in the properties, the sale would be binding on them on any ground of necessity or benefit to the estate of the minors. The

only argument was that he can be left to file a separate suit questioning the sale deed executed by the father. Normally we have to decide the case

and avoid multiplicity of suits, especially in a case where we are satisfied that the minor children have a defined share in the properties which could

not have been disposed of by the father. On the admitted facts, therefore, with a view to protect the interest of the minor children and avoid

multiplicity of suits, we have to see whether we could exercise our discretion against the plaintiffs as the relief in a specific performance suit is

normally discretionary. On the facts and in the circumstances of the case, we are satisfied that we have to deny the equitable relief to the plaintiffs in

so far as the shares of the minor children are concerned.

In the foregoing circumstances, we are of the view that the plaintiffs are not entitled to ask for a decree directing the defendants to execute a sale

deed in respect of the entirety of the properties and that if at all they could get a sale deed executed by the defendant in respect of the defendant''s

undivided one-fifth share in-the properties if the plaintiffs are willing to pay the entire consideration as agreed to in the sale agreement. We are also

not satisfied that the plaintiffs were ready and willing to perform their part of the contract unconditionally without insisting on the satisfaction of

plaintiff''s lawyer in regard to the title to the properties and the production of urban land ceiling redemption certificate. The agreement to sell

contained a clause that--

The vendor shall arrange for the inspection of the title deeds with purchaser''s advocate Sri. V. Gajapathi and shall tarnish him with all further

documents and information that may be called for by the said advocate.

However, in his evidence, the second plaintiff as P.W. 1 has stated that his lawyer had seen the certified copies of the title deeds even before the

execution of the agreement. The defendant denied having handed over the documents prior to the agreement but stated that the documents were

handed over only subsequent to the agreement and the statement that they were given earlier was a false statement. Be that as it may, obviously it

should have put the lawyer on notice that the properties were not the self-acquired properties of the defendant and that, therefore, there should be

legal or binding necessity in order to bind the minor children and in the absence of such binding and necessary purposes, it would not be binding on

the minor children. The cloud on title was, therefore, known to the plaintiffs. There is varying statement as to the step taken relating to obtaining of

the urban land ceiling clearance certificate. While the defendant stated that the land ceiling authorities had told him that the lands are in excess of the

ceiling. P.W. 1 stated that the defendant himself and the plaintiff''s advocate went to the authorities under the Urban Land Ceiling Act and that they

were told that since it is an agricultural land, it will not come within the purview of the Act. But hardly there is any evidence to show that it is an

agricultural land within the meaning of the Act. It is true that the survey numbers are noted as dry lands. But there are only two categories in the

classification of the lands, one as dry and the other as wet. Merely because it is a wet or dry land, it does not cease to be an urban land unless it is

proved that the land was mainly used for the purpose of agriculture. If the land though it is registered as dry land, is situate in an urban area, it will

have to be shown that the land is used for agricultural purposes in order to take it out of the purview of the Act. There is no evidence in this regard.

Therefore, there is doubt as to whether the land is an urban land or a land which is exempt from the provisions of the Act. No certificate is

produced to show that it is either not within the purview of the Urban Land Ceiling Act or it is within the purview of the Act. In these

circumstances, the plea of the defendant that the parties agreed to treat the agreement as cancelled and the defendant agreed to return the advance

paid could not be said to be imaginary or inconceivable. We have to keep in mind also that if the lands are in excess of the ceiling area, any decree

for specific performance, in effect, will force the defendant to contravene the provisions of the Urban Land Ceiling Act. The plaintiffs simply stating

that they do not bother about the Land Ceiling Act, asked for specific performance of the contract. In fact, learned counsel for the respondents

contended that if he is going to suffer by reason of the sale being void on the ground that it was in excess of the ceiling, it does not matter and that

he should be given a decree for specific performance. It is not correct to say that by executing a sale deed, the plaintiffs alone will suffer. For the

purpose of the Act, the sale will be treated as void. The properties will be treated as belonging to the defendants all the while and he will have to

pay the taxes, declare the excess area, surrender the properties and put to himself the liabilities for contravention of the Act in all respects. In these

circumstances, especially when the land is situate within the urban agglomeration, without proper evidence to show that it was not within the ceiling

area, this Court could not exercise its equitable relief of granting a decree for specific performance.

There is no evidence in this case to show as to the status of the plaintiffs or their credit worthiness or their ability to command such a large sum

of money as Rs. 2,00,000. There is a statement in the plaint that they had the money and they are ready and willing to perform their part of the

contract. In chief examination P.W. 1 has not stated that the plaintiffs had the entire consideration ready and were willing to pay if the defendant

had executed the document. There was only a denial of the question put to him in cross-examination that they had not the money. It is also to be

seen that there are five plaintiffs and as to who was having the money and how they were keeping it, whether in cash or in bank or in any other

form, there is no evidence. They have not produced their bank account to show that at any time they had such money to pay and get the sale deed

executed. We may also mention that in the notice calling for execution of the document after receiving the balance of consideration they demanded

the execution of the sale deed in respect of 2 acres 48 cents. Even in the plaint they made a demand for execution of a sale deed in respect of 2

acres 48 cents though the agreement of sale was only with regard to the extent of the 2 acres 4 cents. In fact, the Photostat copy of the agreement

produced and filed along with the plaint also showed that the extent agreed to be sold was 2 acres and 48 cents. In spite of the fact that in the

written statement they specifically took a point that the agreement related to only two acres four cents, they did not take any steps to amend the

plaint till after P. W. 1 was examined. It is only when he was being examined on the extent of the land agreed to be sold, P.W. 1 accepted that the

agreement was only to sell 2 acres 4 cents and thereafter they filed an application to amend the plaint. Therefore, the offer to pay the balance of

consideration was only on condition of the defendant executing a sale deed in respect of the entirety of 2 acres and 48 cents and not 2 acres and 4

cents. In the foregoing circumstances, we are of the view that the plaintiffs have not established that there was any subsisting contract to sell the

properties or that they were ready willing to perform and their part of the contract and the defendant had defaulted in performing his part of the

contract. Accordingly, the appeal is allowed, the judgment and decree of the learned single Judge are set aside and the suit is dismissed. However,

there will be no order as to costs.