N. Balammal vs Perinbamuthu and Others

G. Rajasuria, J.—Both the above Second Appeals are focused as against the common Judgment and Decrees dated 28.09.2001 passed in

A.S. Nos. 26 and 27 of 2001 by the Principal District Court, Kanyakumari District at Nagercoil in reversing the common Judgment and Decrees,

dated 16.11.2000 passed in O.S. Nos. 834 of 1991 and 884 of 1986 by the Additional District Munsif Court, Nagercoil. The parties, for

convenience sake, are referred to hereunder according to their litigative status before the Trial Court in O.S. No. 884 of 1986.

The epitome and the edifice of the case of the plaintiffs in O.S. No. 884 of 1986 (S.A. No. 478 of 2002) which is a Suit for specific

performance of agreement to sell, as stood exposited from the averments in the plaint could be portrayed and parodied thus:

The first plaintiff and the first defendant entered into an agreement to sell whereby the latter agreed to sell in favour of the former an extent of 14

1/2 feet from east to west and 8 1/2 feet from south to north, in S. No. 1529-A, Nagercoil, for a sale consideration of Rs. 1,250/- (Rupees One

Thousand Two Hundred and Fifty only). In connection with the same, a sum of Rs. 500/- was received by the first defendant from the first plaintiff

on 13.12.1982 and a letter was executed by him and handed over the possession of the said property to the intended purchaser. However, the

first defendant postponed the execution of sale deed under one pretext or the other. On 31.01.1986, the first defendant received a further sum of

Rs. 300/- from the first plaintiff and agreed to execute the sale deed within a short time. Despite the first plaintiff was ready and willing to perform

his part by paying the remaining sale consideration of Rs. 450/-, the first defendant did not come forward to execute the sale deed. The pre-suit

notice dated 22.08.1986 from the first plaintiff to the first defendant evoked an untenable reply from the first defendant. Hence, the Suit.

Per contra, a refutatory written statement was filed by the first defendant gainsaying and contradicting the averments/allegations in the plaint

which could be parodied thus:

Being compelled by the excruciating circumstances created by the first plaintiff as against the first defendant, the latter submitted a Petition to the

police on 23.08.1982, whereupon the police suggested certain measures and as a concession, the first defendant agreed to sell an extent of 11 ft. 6

inches by 8 ft. 6 inches to the first plaintiff for a sale consideration of Rs. 1,250/- on the condition that the sale consideration should be paid within

a period of two months from 09.09.1982. On 13.12.1982, the first plaintiff paid a sum of Rs. 500/- for which a receipt was given. Subsequently,

Ex. A. 4 the sale deed dated 11.08.1986 was executed wherein the suit property agreed to be sold was added as the second item. The property

described in the schedule of the plaint is not the one intended to be sold by the first defendant in favour of the first plaintiff. Accordingly, he prayed

for dismissal of the Suit.

During the pendency of the Suit, the defendants 2 and 3 (the wife and son of the first defendant) were added as parties. Balammal, the fourth

defendant was also added as one of the parties who purchased the suit property situated to the north of the second item of Ex. A. 4.

The defendants 2 and 3 filed the written statement setting out the pleas in support of the written statement filed by the first defendant. The first

defendant sold out the suit property to the north of the second item in Ex. A. 4 in favour of one Premkumar, S/o. Mrs. Chinammal, who in turn

sold it to Balammal (D. 4).

The fourth defendant - Balammal, filed the written statement to the effect that she purchased the suit property situated to the north of the second

item of the property contemplated in Ex. A. 4 from one Premkumar, s/o. Mrs. Chinammal and that she has been in possession and enjoyment of

the said property. As such, the defendants 2 to 4 supported the case of the first defendant.

Tersely and briefly, pithily and precisely, the case of the said Balammal, 4th defendant in O.S. No. 884 of 1986, who filed the Suit O.S. No.

834 of 1991 for injunction, is thus:

The property described in the schedule of the Plaint in O.S. No. 834 of 1991 measuring an extent of 112 Sq.feet in R.S. No. E17/17 in Nagercoil

village, is in her possession and enjoyment ever since she purchased it as per Ex. B. 1, the sale deed dated 26.06.1987 from one Premkumar. The

first plaintiff in O.S. No. 884 of 1986 was trying to trespass into the property acquired by her, whereupon she filed the Suit for injunction.

Controverting and challenging, impugning and denying the allegations/averments in the Plaint in O.S. No. 834 of 1991, the first defendant (first

plaintiff in O.S. No. 884 of 1986) filed the written statement setting out various pleas; the gist and kernel of them inter alia would be the same as

found set out in the Plaint in O.S. No. 884 of 1986. However, the additional averments in the written statement are to the effect that the first

defendant in O.S. No. 884 of 1986 executed a sale deed in favour of one Prem kumar who in turn allegedly executed the sale deed in favour of

Balammal. Accordingly, he prayed for the dismissal of the Suit in O.S. No. 834 of 1991.

The Trial Court framed the issues in both the matters.

The Trial Court conducted the joint trial, during which Perinbamuthu (first plaintiff in O.S. No. 884 of 1986 and first defendant in O.S. No.

834 of 1991), examined himself as P.W. 1 and Exs. A. 1 to A. 5 were marked. On the side of Balammal (fourth defendant in O.S. No. 884 of

1986 and the plaintiff in O.S. No. 834 of 1991) examined herself as D.W. 1 and Exs. B. 1 to B. 5 were marked.

Ultimately, the Trial Court dismissed the Suit for specific performance in O.S. No. 884 of 1986 and decreed the Suit for injunction in O.S.

No. 834 of 1991 by a common judgment and decree.

Being aggrieved by and dissatisfied with, the said common judgment and decrees of the Trial Court, Perinbamuthu filed the Appeal in A.S. No.

26 of 2001 and Perinbamuthu along with his wife Selvabai filed the appeal in A.S. No. 27 of 2001, on various grounds. Ultimately, the Appellate

Court reversed the common judgment and decrees and decreed the Suit for specific performance and dismissed the Suit for injunction.

Challenging and animadverting upon, the common judgment and decrees of the First Appellate Court, these Second Appeals are focused on

various grounds. The summation and summarisation of the grounds as found set out in both the Appeals, would run thus:

The First Appellate Court failed to consider the real purport of Ex. A. 1 which is not an agreement to sell; apart from having neglected to hold that

in Ex. A. 4, the second item refers to the actual property intended to be sold by the first defendant in favour of the first plaintiff. In the absence of

any evidence in support of the evidence of P.W. 1, the first plaintiff, Suit for specific performance was decreed erroneously and the Suit for

injunction was dismissed wrongly. The First Appellate Court without appreciating the evidence on record dealt with the First Appeals.

My learned Predecessors framed the following substantial questions of law:

In S.A. No. 477 of 2002:

Whether the judgment of the Lower Appellate Court reversing the judgment of the Trial Judge is opposed to evidence on record ?

In S.A. No. 478 of 2002:

Is not the relief of specific performance claimed in the Suit barred by limitation ?

During arguments, both sides in unison would submit that this Court could reframe the substantial questions of law as per the Proviso (5) to

Section 100 of the Civil Procedure Code. Accordingly, this Court reframed the following substantial questions of law:

(i) Whether the First Appellate Court was justified in holding that there was a valid agreement to sell in the form of Ex. A. 1 between the first

plaintiff and the first defendant in respect of the suit property in the absence of any documentary or clinching oral evidence relating to the

description of the property?

(ii) Whether the First Appellate Court was right in decreeing the Suit in O.S. No. 884 of 1986 by holding Ex. A. 1 as an agreement to sell and

consequently, holding possession as the one not with the fourth respondent in O.S. No. 884 of 1986 and the plaintiff in O.S. No. 834 of 1991?

Both the substantial questions of law are taken together for discussion as they are interlinked and interwoven, intertwined and interconnected

with each other.

The learned Counsel for the said first defendant would develop his argument to the effect that Ex. A. 1 is only a receipt issued by the first

defendant and in no way, it could be taken as an agreement to sell; it was signed only by the first defendant and not by the first plaintiff; no

description of property is found set out therein and as such, it cannot be treated as an agreement to sell.

Whereas the learned Counsel for the first plaintiff would submit that the said Ex. A. 1 is an agreement to sell which is an admitted fact and in

such a case, the first defendant cannot veer round and take pleas quite antithetical to his own earlier stand.

At this juncture, I would like to point out that it is the case of the first defendant that Ex. A. 1 emerged in connection with the receipt of Rs.

500/- and Rs. 300/- on 13.12.1982 and 31.01.1986 respectively by him from the first plaintiff towards part of the sale consideration for selling the

second item of the properties in Ex. A. 4. It is the contention of the plaintiffs that the said property was agreed to be sold by the first defendant.

However, the first defendant would deny it. In paragraph No. 2 of the plaint in O.S. No. 884 of 1986, it is found detailed thus:

Defendant entered into an agreement of sale with the 1st plaintiff agreeing to sell the schedule property for a consideration of Rs. 1,250/- to the

plaintiff. On 13.12.1982, towards part of sale consideration defendant received Rs. 500/- from the 1st plaintiff and has given a letter written in his

letter pad and signed by him and surrendered possession of the schedule property to the 1st plaintiff.

The aforesaid averments in the Plaint are vague as vagueness could be. There is no specification as to whether the agreement to sell is an oral

or a written one.

The learned Counsel for the first defendant would properly comment upon such cryptic averment in the plaint and develop his argument that if

at all it is the case of the plaintiffs that the agreement to sell was an oral one, then in very many words, such a plea should have been found

exemplified in the plaint, but the plaint is niggard and bereft of such details.

I could see considerable force in the submission of the learned Counsel for the first defendant that an oral agreement to sell should have been

pleaded specifically and proved accordingly. It is not known as to when such oral agreement to sell was entered into. The Court cannot presume

that simply because in Ex. A. 1, one of the endorsements is dated 31.12.1982, the said oral agreement to sell was entered into only on

13.12.1982. In fact, the recitals in Ex. A. 1 are reproduced hereunder for ready reference:

A bare perusal of the aforesaid excerpt would evince and evidence that there is a reference in the endorsement dated 13.12.1982, as though

already there emerged an agreement to sell, but on what date, it was entered into is not known. The deposition of P.W. 1, the first plaintiff namely

Perinbamuthu is only his ipse dixit. To prove oral agreement to sell, there should be clinching evidence. Simply because, the first defendant

admitted that Ex. A. 1 is relating to the part of the sale consideration relating to the second item of Ex. A. 4, there is no presumption that it should

be taken that the first defendant admitted the case of the plaintiff.

Regarding the subject matter of the said oral agreement to sell is concerned, according to the plaintiff, the suit property, was the subject matter.

Per contra, the first defendant would contend that it was only the second item in Ex. A. 4 which was agreed to be sold and accordingly, sold under

Ex. A. 4. Hence, in such a case, in the absence of any documentary or oral evidence, the First Appellate Court was not justified in arriving at the

conclusion that Ex. A. 1 itself is an agreement to sell. The First Appellate Court in paragraph No. 13 of its judgment, erroneously assumed as

though Ex. A. 1 is an agreement to sell as penalty and stamp duty were collected by the lower Court treating it as an agreement to sell. The First

Appellate Court was duty bound to find out independently as to whether Ex. A. 1 is an agreement to sell. In fact, the Trial Court was not expected

to collect stamp duty on Ex. A. 1 treating it as an agreement to sell.

The aforesaid excerpt from Ex. A. 1 would clearly indicate that by no stretch of imagination, it could be termed as agreement to sell. It is a

rudimentary principle of law that to constitute an agreement to sell, there should be signatures of two parties in the document concerned and to the

barest or minimal extent, there should be recitals relating to the agreement to sell. To the risk of repetition, without being tautologous, I would like

to spotlight that absolutely there is no iota or shred of evidence to demonstrate as to which property was sought to be sold and on what date both

the parties agreed for such sale. Hence, in such a case, the First Appellate Court misdirected itself in holding that the plaintiffs in O.S. No. 884 of

1986 proved that it was an agreement to sell.

It is a common or garden proposition of law that witnesses might lie, but the circumstances would not lie. In Ex. A. 1, the first endorsement

was made as early as on 13.12.1982 and the second endorsement was made on 31.01.1986 so to say after three years from the date of first

endorsement. It is the contention of the plaintiffs that despite incessant demands made by the first plaintiff to the first defendant, the latter

postponed the execution of the sale deed under one pretext or other. If that be so, it is not known as to why at least a notice was not sent after

13.12.1982 but before 31.01.1986. In fact, Ex. A. 4 emerged on 11.08.1986. No doubt, there is no reference to Ex. A. 1 in Ex. A. 4. The

burden of proof is on the first plaintiff to prove his case for specific performance. According to the plaintiffs, the first defendant was not co-

operative, if that be so, it is not known how all of a sudden, Ex. A. 4 emerged in favour of the second plaintiff, the wife of the first plaintiff.

It is a trite proposition of law that preponderance of probabilities would govern the adjudication in Civil cases. After emergence of the second

endorsement on 31.01.1986, Ex. A. 4 emerged. The plaintiff has given notice only on 22.08.1986, so to say, shortly after the emergence of Ex. A.

In Ex. A. 3, the reply letter dated 23.08.1986, the first defendant clearly set out his defence as to how taking undue advantage of Ex. A. 1 and

bye-passing and suppressing Ex. A. 4, simply the plaintiffs intended to lay claim over the suit property which is the one other portion of the first

defendant''s property which the first defendant subsequently sold it in favour of one Premkumar who in turn sold it to Balammal (D. 4).

Had really the suit property was intended to be the one as the subject matter of the agreement to sell referred to in the Plaint, it is not known as

to why at the time of getting Ex. A. 4 executed in favour of the second plaintiff (wife of the first plaintiff), the first plaintiff did not insist for, including

the suit property also in Ex. A. 4.

It is therefore pellucid and palpable that the plaintiff has not approached the Court with true facts.

The learned Counsel for the appellant in both the Second Appeals, cited the following decisions:

(i) Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another, . An excerpt from it, would run thus:

It is no doubt true that ordinarily an endeavour should be made by the Court to give effect to the terms of the agreement but it is also a well-

settled principle of law that an agreement is to be read as a whole so as to enable the Court to ascertain the true intention of the parties. It is not in

dispute that no plan was prepared. A purported sketch mark was attached with the Plaint, which was not proved. Evidences brought on record

clearly lead to the conclusion that the appellant was not the tenant in respect of the entire house. She, in her deposition, even did not claim the

same. Another tenant was occupying some rooms in the same premises. The appellant herein in her evidence also admitted that no map was

attached to the agreement.

The very fact that the premises sought to be transferred could not adequately be described; a plan was sought to be attached. According to the

appellant herself, she had been residing only on the ground floor, along with open land on the northern side and had been using two rooms, a

patore alone with open land of the upper portion.

She had not received the possession of the disputed house. It is, therefore, evident that she did not claim herself to be a tenant in respect of the

entire house and, thus, the same was not agreed to be sold.

It is in the aforementioned context, the meaning of the words used in the agreement must be determined. It refers to the property where the

appellant was living and not any other property. If the appellant was living in a part of the property, only the same was the subject-matter of the

sale and not the entire premises.

Reliance has been placed by Mr. Narsimha on a decision of the House of Lords in Hillas & Co. Ltd. v. Arcos Ltd. wherein it was held: (All

ER p. 494 H-I)

It is the duty of the Court to construe agreements made by businessmen-which often appear to those unfamiliar with the business far from complete

or precise-fairly and broadly, without being astute or subtle in finding defects; on the contrary, the Court should seek to apply the maxim verba ita

sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does not mean that the Court is to make a contract for the parties, or to

go outside the words they have used, except insofar as there are appropriate implications of law, as, for instance, the implication of what is just and

reasonable to be ascertained by the Court as matter of machinery where the contractual intention is clear but the contract is silent on some detail.

Thus in contracts for future performance over a period the parties may not be able nor may they desire to specify many matters of detail, but leave

them to be adjusted in the working out of the contract.

There is no dispute with regard to the aforementioned legal position. However, we have not been called upon to construe in agreement entered

into by and between two businessmen. The maxim, cerium est quod cerium reddi potest instead of being of any assistance to the appellant, runs

counter to her submission. It means that is certain which can be made certain. In relation to ""uncertainty"" it is stated:

The office of the habendum in a deed is to limit, explain or qualify the words in the premises; but if the words of the habendum are manifestly

contradictory and repugnant to those in the premises, they must be disregarded. A deed shall be void if it be totally uncertain; but if the Kings''

grant refers to another thing which is certain, it is sufficient; as, if he grants to a city all liberties which London has, without saying what liberties

London has.

An agreement in writing for the sale of a house did not describe the particular house, but it stated that the deeds were in the possession of A. The

Court held the agreement sufficiently certain, since it appeared upon the face of the agreement that the house referred to was the house of which

the deeds were in the possession of A, and, consequently, the house might easily be ascertained, and id cerium est quod cerium reddi potest.

Again, the word ''certain'' must in a variety of cases where a contract is entered into for the sale of goods, refer to an indefinite quantity at the time

of the contract made, and must mean a quantity which is to be ascertained according to the above maxim.

Reference to the said legal maxim, in our opinion, is not apposite in the facts and circumstances of this case. By reference to the boundaries of

the premises alone, the description of the properties agreed to be sold did not become certain. For the purpose of finding out the correct

description of the property, the entire agreement was required to be read as a whole. So read, the agreement becomes uncertain.

In fact, the aforesaid decision is squarely applicable to the facts and circumstances of this case as absolutely there is no evidence much less

plausible evidence to prove the agreement to sell.

(ii) John Sylem Vs. Chanthanamuthu Pillai (died) and State of Tamil Nadu, An excerpt from it, would run thus:

Thus, the plaintiff, apart from producing a document executed by a person whose title to the property conveyed was uncertain and which

document set out the boundaries in a vague manner, has not adduced any acceptable evidenced to identify and locate the property. An important

boundary mentioned in the schedule to that deed remained vague and it''s location unknown. The plaintiff only sought to improve his case with the

aid of the reports of the Commissioner. All those reports have been rightly found by the Trial Court and the learned Single Judge to be wholly

unreliable and not of any use in locating the suit schedule property.....

The evidence of this witness does not in any manner help the plaintiff to improve his case. The burden of establishing the case is on the plaintiff.

Unless the property with reference to which the declaration sought is clearly identified, the plaintiff is not entitled to a decree. The plaintiff has failed

to establish that identity. The learned Single Judge was right in rejecting the Appeal against the dismissal of the plaintiffs Suit.

The perusal of the above excerpt and more specifically the entire judgment, would clearly highlight that to prove an agreement to sell, there should

be evidence relating to the identity of the subject matter of the agreement to sell. But, in this case, absolutely there is no semblance of evidence to

demonstrate that the suit property was intended to be sold by the first defendant in favour of the first plaintiff.

Reiterating the aforesaid propositions, the learned Counsel for the appellant cited the decision of the Gujarat High Court in Shankarrao

Ramrao Mairal and Another Vs. Sumati Bhikaji Khiste,

Whereas the learned Counsel for the respondents would cite the decision in Mithu Khan Vs. Pipariyawali and Others, . An excerpt from it,

would run thus:

Shri K.N. Gupta, learned Counsel for the appellant has attacked the impugned judgment on various grounds of law. He has characterised Ex.

P1, the agreement to sell as void on the ground that no specification of the property, i.e., the Survey number and the area of the land has been

given. I anxiously examined the document and found that it contains the name of the land as ""Bada Gadha"", the name given in the plaint. Merely

because it does not contain the Survey number or the area, the document cannot be branded as a void agreement. In villages, the lands are known

by name rather than by its survey number. This custom of naming a piece of agricultural land seems to be based upon the legendary illiteracy of the

country.

The aforesaid decision is not applicable to the facts and circumstances of the case as in the cited precedent, the subject matter of agreement to

sell was mentioned as ''Bada Gadha'' and that too, such a specification was found in a ful fledged agreement to sell which was proved to the

satisfaction of the Court. On the contrary, here, the plaintiff has not proved that the suit property was as in Ex. A. 1. Hence, in such a case, the

plaintiff cannot press into service the cited decision of Madhya Pradesh High Court.

Put simply, it is therefore clear that the First Appellate Court committed serious error in applying the law to the evidence on record and

accordingly, it warrants the interference of this Court so as to set aside the common judgment and decrees of the First Appellate Court and to

restore the common judgment and decrees of the Trial Court.

Relating to O.S. No. 834 of 1991 is concerned, the First Appellate Court without any reliable evidence, simply held as though Balammal is not

in possession of the suit property. My discussion supra would exemplify that the plaintiff approached the Court with false facts and in such a case,

the question of holding that the first defendant handed over the possession of the suit property in favour of the first plaintiff does not arise at all.

Merely based on the ipse dixit of P.W. 1, the injunction should not have been denied in favour of Balammal, the plaintiff in O.S. No. 834 of 1991.

When there is no evidence that Ex. A. 1 refers to the suit property, there would be no possibility of holding the factum of possession of the suit

property in favour of the first plaintiff in O.S. No. 884 of 1986. The First Appellate Court was carried away by the fact that during the pendency

of the Suit, the fourth defendant purchased the suit property and hence, it was hit by lis pendens. I am of the considered opinion that the Doctrine

of lis pendens in the facts and circumstances of the case was wrongly pressed into service by the First Appellate Court. When the plaintiffs in O.S.

No. 884 of 1986 are not in any way entitled to the suit property and there is nothing to indicate that they have been put in possession of it by the

first defendant in O.S. No. 884 of 1986, the fourth defendant in O.S. No. 884 of 1986 (the plaintiff in O.S. No. 834 of 1991) cannot be

prevented from claiming right over the said property.

If at all, the plaintiffs in O.S. No. 884 of 1986 established their rights, then the question of applying the Doctrine of lis pendens would arise.

The First Appellate Court misdirected itself and dismissed the Suit in O.S. No. 834 of 1991. In the result, the substantial question of law No.(i) is

decided to the effect that the First Appellate Court in the absence of any evidence wrongly held Ex. A. 1 as an agreement to sell and decreed the

Suit in O.S. No. 884 of 1986 and dismissed the Suit in O.S. No. 834 of 1991 and the substantial question of law No.(ii) is decided to the effect

that the First Appellate Court committed error in holding Ex. A. 1 as an agreement to sell and consequently, holding possession as the one not with

Balammal, the fourth defendant in O.S. No. 884 of 1986 and the plaintiff in O.S. No. 834 of 1991. Accordingly, both the Second Appeals are

allowed and the common judgment and decrees of the First Appellate Court are set aside and the common judgment and decrees of the Trial

Court are restored. No costs.