Nallaya Gounder and another vs P. Ramaswami Gounder and another

Thangamani, J.—Appeal against the judgment and decree of learned Subordinate Judge of Salem in O.S. No. 124 of 1981 on his file.

The appellants are defendants 4-and 5 in the trial Court. Respondents-plaintiffs instituted the suit for specific performance against the appellants

and three others alleging that on 27-8-1980 defendants 1 to 3 entered into Ex. A1 sale areement with them undertaking to sell the suit properties

for Rs. 52,500/-. they received a portion of the sale price of Rs. 20,000/- as advance and agreed to receive the balance of Rs. 32,500/- within a

period of 5 1/2 months from that date and to execute the sale deed in favour of the plaintiffs. On 16-11-1980 which corresponds the 1st of Tamil

month Karthigai the plaintiffs were put in possession of the properties as agreed and since then they are in actual enjoyment of them. Appellants

were aware of Ex.A-1 agreement as well as handing over possession of the properties to the plaintiffs by defendants 1 to 3. Since defendants 1 to

3 were postponing the execution of the sale deed, the plaintiffs convened panchayat thrice. The last panchayat took place at the house of Village

Munsiff of Konnayar on 1-1-1981 in which defendants 1 to 3 undertook to execute the conveyance on 7-1-1981. Appellants were also present

along with defendants 1 to 3 in that panchayat. However, defendants 1 to 3 and the appellants have colluded together and created Ex.B-2 sale

agreement dated S. 3,1980 in favour of the appellants on 3-1-1981 by antedating the same. Ex.B-1 sale deed dated 2-1-1981 was also executed

by defendants 1 to 3 in favour of the appellants in respect of the suit properties fraudulently in order to deprive the plaintiffs of their right. The

recitals as to consideration, possession are all false and fabricated so as to get over the right of the plaintiffs under Ex. A-1 agreement dated 27-1-

1980. Appellants cannot derive any right, title or interest in the suit properties by virtue of Ex.B-1 sale deed. Appellants are not bona fide

transferees for value without notice of the earlier agreement for sale in favour of the plaintiffs and their possession.

Defendants 1 to 3 remained ex parte in the suit.

The appellants resisted the suit denying that Ex. A-1 came into existence on 27-8-1980 and that the plaintiffs were ever in actual possession of

the properties and that there was any mediation in this connection. They pleaded that they lawfully entered into Ex.B-2 agreement with defendants

1 to 3 on 5-3-1980 and in pursuance of the same defendants 1 to 3 conveyed the suit properties in favour of them under two sale deeds Ex.B-1

dated 2-1-1981 and Ex.B-9 dated 13-1-1981. They were also put in actual possession of the suit properties. Till then their vendors alone were in

enjoyment of the properties and Ex.B-2 agreement is not an antedated one.

Holding that Ex.A-1 is a genuine agreement and there is nothing to suspect that it was created later on by antedating the instrument, that

appellants were aware of the existence of Ex.A-1 agreement, that possession was delivered to the plaintiffs as per Ex.A-9 delivery receipt dated

16-11-1980, that Ex.B-2 sale agreement was created by antedating the same and that the plaintiffs had come to Court with clean hands, the trial

Court decreed the suit with costs for specific performance.

The endeavour of Mr. G. Subramanian, learned senior counsel for the appellants was mainly to place before the Court the suspicious

circumstances attendant on the transaction and to demonstrate that Ex.A-1 sale agreement dated 27-8-1980 was created subsequent to the

coming into existence of Ex.B-2 agreement on 5-3-1980. In other words, his argument was that Ex.B-2 agreement preceded Ex.A-1 agreement.

The first submission in this connection relates to delivery of possession of the property. It is the evidence of the first plaintiff as P. W. 1 that on 27-

8-1980 defendants 1 to 3 agreed to convey the suit items to them for Rs. 52,500/- and received an advance of Rs. 20,000/-. The sale deed was

to be executed within a period of 5 1/2 months. He was willing to pay the balance of sale consideration and get the sale deed executed. On 16-

11-1980 defendants 1 to 3 handed over possession of the properties to him as per Ex.A-9 delivery receipt. Learned senior counsel for the

appellants pointed out that as per the recitals in Ex.A-1 the property in Survey No. 231/1 is a plot of 30 cents with a five anganam thatched shed

thereon. 1st defendant Periyakaruppa Gounder and third defendant Nallammal are to enjoy this property till their lifetime and only thereafter

appellants are to take possession of the same. There is no reason why contrary to the express recitals in Ex.A-1, defendants 1 to 3 should have

surrendered the right to reside in that house till their lifetime. None of the witnesses examined on the side of the plaintiffs seeks to give any

explanation on this aspect. So in all probability plaintiffs were never given possession as indicated in Ex.A-9 delivery receipt.

Ex.A-1 agreement reads that the properties are to be handed over to the prospective purchasers on the 1st of Karthigai month. The specific

averments in the plaint are to the effect that defendants 1 to 3 are closely related to defendants 4 and 5 and they are colluding each other. It is not

the evidence of the first plaintiff as P.W. 1 that defendants 1 to 3 are in any way related to or interested in him. While so, it passes one''s

comprehension as to the necessity of urgency for defendants 1 to 3 to undertake and later on hand over possession of the properties to the

plaintiffs even before receiving sale consideration in full. Besides the version of the first plaintiff as P.W. 1 that because there were standing cotton

crops, the vendors undertook to hand over possession on the first of Karthigai month does not inspire confidence. Had it been the real reason,

certainly this would have found a place in Ex.A-1 sale agreement itself.

Ex.A-9 purports to be a delivery receipt dated 16-11-1980 evidencing handing over possession of the suit properties by defendants 1 to 3 in

favour of the plaintiffs. No dobt Ex.A-1 agreement recites that on the 1st of Tamil month Karthigai the vendors are to hand, over possession to the

vendees. And in Ex.A-3 the notice dated 6-1-1981 issued by the plaintiffs to the defendants stating that Ex.B-2 agreement has been created by

antedating mention is made about the plaintiffs taking possession on 16-11-1980. However, it is significant to note that this notice makes no

reference to Ex, A-9 delivery receipt. Even the plaint is conspicuously slient about the execution of Ex.A-9 delivery receipt, even though there is an

allegation that possession was handed over on 16-11-1980. Besides, a scrutiny of Ex.A-9 reveals that it has been filed into Court only on 28-6-

1982 during trial. Had it really been in existence on the date of document, such a vital piece of evidence would not have been failed to be disclosed

in the list of documents appended to the plaint.

P.W. 2 Kuppanna Gounder is an attestor to Ex.A-9 delivery receipt. He owns lands adjacent to the suit properties. It is significant to note that

when he was examined on 24-6-1982, he merely stated that on the 1st of Tamil month Karthigai possession was delivered and he attested delivery

receipt. However, the said receipt was not placed before him on that day. Even P.W. 1 who was examined on 24-6-1982 stated that delivery of

property was given to him on 16-11-1980. He made no mention of the existence of this receipt on that day. Only when he was again examined on

28-6-1982 Ex.A-9 was produced and marked through him. P.W. 2 also identified his signature in Ex.A-9 only when he was examined for the

second time on 29-6-1982. Further this witness admits in cross-examination that subsequent to Ex.A-1 he had never visited the suit properties.

Evidently he could not have had any personal knowledge of the handing over of possession as per Ex.A-9 delivery receipt. So there is substance in

the argument of learned senior counsel for the appellants that Ex.A-9 delivery receipt was got up for the occasion as an afterthought when the trial

proceeded. And the evidence of P.W. 1 that the appellants were present at the time of delivery is only an attempt to attribute knowledge of Ex.A-

1 agreement to them.

Yet another factor brought to our notice by learned senior counsel for the appellants is this. P.W. 1 states in the witness box that on 26-8-

1980 he purchased some other property for Rs. 22,200/- from defendants 1 to 3 under Ex.A-8. There was no written agreement preceding the

said sale. At the time of Ex.A-8 he was in possession of one lakh rupees. After paying the sale consideration of Rs. 22,200/- under Ex. A-8 the

balance was remaining with him. And as per the version of P.W. 2 Kuppanna Gounder, the plaintiffs were ready to pay the money and get the sale

deed executed in their favour. While so it is not known why the suit properties were not also purchased along with the items conveyed under Ex.

A-8. There was absolutely no reason for entering into Ex.A-1 agreement on the same day undertaking to complete the sale transaction within a

period of 5 1/2 months from that day.

P.W. 2 Kuppanna Gounder and P.W. 3 Kuppusubramaniam are the attestors to Ex.A-1 agreement. P.W. 4 Hanumantha Rao purports to be

the scribe of this agreement. While P.W. 3 Kuppasubramaniam is the Karnam of Elachipalayam, P.W. 4 Hanumantha Rao is the Karnam of

Kilapalayam village. P.W. 1, the first plaintiff is categorical in his version that Ex.A-1 was written in the house of Kilapalayam Karnam, though in

the first instance they only went to the house of P.W. 3 to write the document there whereas P.Ws. 2 to 4 would say that this agreement was

written in the house of P.W 3 only. The first plaintiff as P.W. 1 says that Ex.A-8 sale deed was written and registered on the same day and the

terms of the agreement under Ex.A-1 were also concluded on that day but it was written only on the next day. We find from Ex.A-8 that sale due

was written on 26-8-1980 and registered on 27-8-1980. Further according to P. W. 2 Kuppanna Gounder, they left Mallasamudram at 3.15 p.m.

and reached Elachipalayam at 4.00 p.m. and P.W. 3 Kuppusubramaniam says that Ex.A-1 was written at his residence from 4.00 p.m. to 5.00

p.m. on 27-8-1980. But the endorsement in Ex.A-8 reveals that this sale deed was registered between 3.00 and 4.00 p.m. on that day. P.W. 2

Kuppanna Gounder is one of the attestators to Ex.A-8. P.W. 4 Karnam of Kilapalayam is the scribe of this sale deed. When these persons were

avilable in Mallasamudram itself, it is not known why Ex.A-1 was not written there itself on the date of registration of Ex.A-8 sale deed. It is also

significant to note that P.W. 4 Karnam nowhere states that he wrote Ex.A-1, though he has chosen to give evidence that the defendants 1 to 3

executed the agreement wherein the plaintiffs also affixed their signature and thumb impression. The infirmities in the evidence of P.Ws. 1 to 4

certainly cast doubt about the credibility of their versions regarding the coming into existence of Ex.A-1 agreement.

Ex.B-2 is the agreement dated 5-3-1980 executed by defendants 1 to 3 in favour of the appellants in respect of the suit properties. The 5th

defendant as D.W. 1 says that pursuant to the same they purchased the property under Ex.B-1 the sale deed dated 2-1-1981. Since one item was

omitted to be included in the sale deed later on they got Ex.B-9 executed in their favour on 13-1-1981. Ex.B-2 agreement has been attested by

D.W. 2 Kandasamy Gounder. He speaks about the typing of this agreement at the Sub Registrar''s Office at Tiruchengodu and the passing of Rs.

15,000/- part of sale consideration. The stamp paper for Ex.B-2 has been purchased in the name of 5th defendant Kulandaivel at Thammampatti

on 20-2-1980. Mr. K. Doraiswami, learned senior counsel for the respondents laid stress on the purchase of the stamp paper at Thammampatti

and argued that on coming to know of Ex.A-1 agreement, the appellants went in search of old stamp papers and concocted Ex.B-2 agreement

with the aid of one they secured at distant Thammampatti. Even the trial Court discarded Ex.B-2 on the ground that to create antedated agreement

stamp papers were searched for and purchased at Thammampatti which is 50 miles from Mallasamudram, while admittedly there is a Sub

Registrar''s Office at Mallasamudram and stamp papers are available there. However, on a careful scrutiny of the evidence on record, we do not

feel convinced of this claim. It is seen that as per the evidence of D.W. 1 Kulandaivel, 20 days prior to Ex.B-2 the negotiation for sale was over in

the house of the first defendant. Five days later he purchased the stamp paper and 10 or 15 days subsequent to that date Ex.B-2 was written. It is

not as if the stamp paper for Ex. B-2 sale deed stands in the name of some body else. If it is so, one can argue that an old stamp paper was

searched for and obtained in order to create an antedated agreement. But it is significant to note that the stamp paper for Ex.B-2 stands only in the

name of 5th defendant Kulandaivel. Be it also seen that the stamp papers for Ex.B-1 sale deed have been purchased in the name of 5th defendant

Kulandaivel in Madras as well as Salem. D.W. 1 has denied the suggestion that on coming to know of Ex.A-1 sale agreement a search was made

for old stamp paper in all the places and since it was available only at Thammampatti, the stamp paper was purchased there and the agreement

was written by putting an earlier date. But there is one fallacy in this claim. Be it noted that Ex.A-1 agreement has come into existence only on 27-

8-1980. Whereas the stamp paper for Ex.B-2 has been purchased on 20-2-1980. So evidently the stamp paper for Ex.B-2 could not have been

purchased on coming to know of the existence of Ex.A-1 agreement.

Ex.A-21 is a duplicate of Ex.B-2 agreement. Besides, reciting all the contents of Ex.B-2, Ex.A-21 contains the signatures of the executants.

D.W. 2 alone figures as a witness in both Exs. B-2 and A-21. While one Palani Gounder son of Sengoda Gounder is an attestor in Ex.B-2, in the

other agreement one Palaniappan son of Subbu Gounder is the attestor. Of course there are some discrepancies in the schedule of properly in the

two agreements. While Ex.B-2 makes mention of S.F. No. 231/3, in Ex.A-21 it is typed as Survey No. 231/34. But extent and assessment are

the same in both the documents. Evidently it is a typographical error. Further, while Ex.B-2 makes mention of Survey No. 232/2; that survey field

does not find a place in Ex.A-21. It is possible that this last item in Ex.B-2 is an omission in Ex. A-21. There is no reason for not accepting the

testimony of D.W. 1 that because the first defendant wanted a copy, they typed Ex.A-21 and handed it over to him. This witness further says that

all of them signed in that copy and the person who typed also affixed his signature to the same. And the view of learned Subordinate Judge that

because of these discrepancies, Ex.B-2 is an antedated agreement does not appear to be sound.

Further, learned senior counsel for the appellants drew our attention to the fact that this appellant drew our attention to the fact that this Ex.A-

21 was marked during the cross-examination of D.W. 1 by the plaintiffs'' counsel. As per the evidence of D.W. 1, Ex.A-21 was handed over to

the first defendant since he wanted a copy of Ex.B-2 agreement. There is no explanation as to how this document found its way into the hands of

the plaintiffs. Evidently it should have been handed over to them by the first defendant. This factor clinchingly points out the collusion between

defendants 1 to 3 on one hand and the plaintiffs on the other. As a corollary it follows that Ex.A-1 document could have necessarily come into

existence later on after the agreement under Ex.B-2 was entered into on 5-3-1980. Probably defendants 1 to 3 wanted to go back on the

agreement since the plaintiffs who are neighbouring land owners chose to offer higher price on coming to know of Ex.B-2 in favour of the

appellants. That Ex.A-6 the prior title deed executed in favour of the first defendant was produced by the plaintiffs also goes to strengthen the view

that the collusion was only between the plaintiffs and defendants 1- to 3.

We find as per the plaint averment, ""the plaintiffs convened panchayat thrice and the last panchayat took place at the house of the Village

Munsiff of Konnayar on 1-1-81 in which it was decided and the defendants 1 to 3 agreed to convey the suit properties to the plaintiff free of all

encumbrances at their cost on 7-1-81. The panchayathars are Sellappa Gouader, son of Periya Gounder Sankaranpalayam (2) Kaliyanna

Gounder, Nallamapalayam (3) Ponnayaru Poon Gounder, Kuppuswami Gounder, Selliyamman Koil Trustee Konnayaru and Ex. V. M. of

Konnayar"". However, in his evidence, P.W. 1 gives the names of panchayatdars as Kuppana Gounder, Konnayar Munsiff, Sellappa Gourider,

Pulli Gounder and Subramanian. The discrepancy in the names of the panchayatdars mentioned in the plaint and the evidence has not been

explained. And the plaintiffs have not chosen to examine any of the panchayatdars to substantiate their allegations. Though Ex.A-3 notice has been

issued on 6-1-1981, subsequent to the date of the last panchayat, the said panchayat is not referred to in this notice. Ex.A-1 agreement stipulates

that the sale is to be completed within 5 1/2 months from 27-8-1980. However, the plaintiffs have not given any reason for convening three

panchayats within the date agreed to under agreement Ex. A-1. While the date of the last panchayat alone finds a place in the plaint, the dates of

other panchayats are neither pleaded nor spoken to in evidence. So, there could be no doubt that this plea of panchayat is also far from truth. In

the circumstances, we are of the view that it is Ex.B-2 agreement which preceded Ex.A-1 agreement and not vice-versa as concluded by learned

trial Judge.

Learned senior counsel for the appellants next submitted that the remedy of specific relief being an equitable one, the plaintiffs must come to

Court with clean hands. In this case there is positive proof that Ex.A-9 delivery receipt has been concocted for the purpose of this case. We have

also seen that the plaintiffs have put forward a false case regarding convening of panchayat. So, even if we are to take that Ex.A-1 agreement has

come into existence prior to Ex.B-2 agreement, the plaintiffs cannot maintain this action. In support of his contention he cited the decision of Ismail,

J: (as he then was) in Ramaswamy Gounder v. Venkatachalam, (1976) 1 Mad LJ 243. In that case the plaintiff denied in his evidence that he

averred in the plaint that the defendants did not come to the Sub-Registrar''s Office. Further, while the allegation in the plaint was to the effect that

prior to a particular date he had tendered the entire balance of Rs. 14,000/- to the defendant, it was borne out from his evidence that he came into

possession of part of the money only at a later date. There was also discrepancy in his evidence regarding the persons in whose names the stamp

papers were purchased. Besides, his version in the witness box on the receipt of the notice was not consistent with the averment in the plaint. On

the question whether the plaintiff would be entitled to the relief of specific performance, it was held that the falsity of the case put forward by the

plaintiff disentitled him from obtaining the discretionary relief of specific performance of agreement. The falsity of the case directly impinged on the

essential ingredients and elements necessary for claiming the relief. In Vyapuri v. Vijayan, 1978 TLNJ 62, the Court found that a sum of Rs.

11,000/-was not paid as advance as contended by the plaintiff and that what was paid was only a sum of Rs. 1,000/-, The Division Bench

comprising of Ismail and Nainar Sundaram, JJ. held that the plaintiff who comes to the Court with a false case in material ingredients necessary for

the grant of relief of specific performance will not be entitled to the equitable relief at all. The remedy of specific performance is an equitable

remedy and is in the discretion of the Court, which discretion has to be exercised according to recognised principles of law and not arbitrarily. In

Appeal No. 355 of 1984 we had occasion to consider the same question. In that case the appellant based his relief on Ex.A-1 agreement after

making interpolation so as to make it appear that he has a right in it. On the ratio laid down in the decisions referred to above, this Bench took the

view that that was sufficient to refuse the relief to the appellant. So, in the present action also we have no hesitation in negativing specific

performance for the reason that the plaintiffs have not come forward with clean hands in asking for the equitable relief.

u/s 16(c) of the Specific Relief Act, specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove

that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other

than terms the performance of which has been prevented or waived by the defendants. Learned senior counsel for the appellants submitted that the

plaint in his case did not contain any averment to the effect that the plaintiffs made a demand for specific performance and there was a refusal on

the part of defendants 1 to 3 to comply with the said demand. It will not be sufficient if the plaintiff pleads and proves that he is ready and willing to

perform his part of the contract, but he must also plead that he made a demand on the defendant for performance of the contract and the defendant

refused to comply with the same and that the language of Rule 3 of Order VI of the CPC is mandatory and any plaint in a suit for specific

performance has to be strictly in conformity with Form No. 47 or 48 of Appendix A of the Code of Civil Procedure. Learned counsel for the

appellants further pointed out that the plaint does not contain averments regarding cause of action also. He relied on the decision in Abdul Khader

Rowther v. Sara Bai, 1989(43) ELT797(SC) , wherein the apex Court has laid down: ""A suit for specific performance has to conform to the

requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent

on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go futher and plead that he has applied to the

defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is

still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has

taken those pleas. As observed by this Court in Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and Another, , that it is well settled that

in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such

an allegation the suit is not maintainable.

A perusal of Forms Nos.47 and 48 shows that in a suit for specific performance there must be averments to the effect that plaintiff has applied

to the defendant specifically to perform the agreement on his part, but the defendant has not done so. The plaintiff was still ready and willing

specifically to perform the agreement on his part of which the defendant had notice. And we find from the plaint that besides stating that they are

ready and willing to perform their part of the contract mention is made of the plaintiffs convening panchayat thrice and defendants 1 to 3 agreeing

to execute the conveyance and later on selling the properties in favour of the appellants under Ex.B-1 and B-9. So in our view there is sufficient

compliance of the requirements of Forms 47 and 48 of Appendix-A of the Code of Civil Procedure.

In the result, the appeal is allowed and the judgment and decree of the trial Court are set aside and the suit is dismissed with costs of

defendants 4 and 5 (appellants) throughout.

Appeal allowed.