Senniappa Gounder vs V.K. Venkataraman and others

Sethuraman, J.—The two appeals arise out of the judgment of the Additional Subordinate Judge of Erode in O.S. No. 166 of 1966. A.S. No. 647 of 1976 has been filed by the first defendant in the suit and A.S. No. 1025 of 1980 has been filed by the plaintiff. The civil miscellaneous petitions have been filed, one for dismissal of the appeal as not maintainable and the other for the reception of certain documents as additional evidence. We shall deal with the two civil miscellaneous petitions in due course. The suit properties belonged absolutely to the first defendant. The second defendant is the wife and defendants 3 and 4 are his daughters. In or about 1946 the first defendant married the second defendant. On account of some misunderstanding, the second defendant was living separately from the first defendant from 1952. Her parents are said to be in affluent circumstances and she was residing in her parents place. She filed a suit O.S. No. 664 of 1953 on the file of the District Munsif''s Court, Gobi, claiming maintenance from the first defendant. On 10th January, 1954 the suit was decreed and she was granted maintenance with a charge over the properties, at the rate of Rs. 35 per month along with a sum of Rs. 400 per annum for her residence. There was an appeal (A.S. No. 153 of 1954) in the Sub-Court, Coimbatore, by the first defendant and by the judgment, dated 18th January, 1955 the maintenance allowance was increased by Rs. 2, making up a sum of Rs. 37 per month and the sum of Rs. 400 provided for residence was deleted. As a result of the marriage, there were three children of whom one died when it was about 10 months old. The other two children lived with the husband. The sixth defendant is a concubine of the first defendant and they have a son by name Muthuswami, who is the fifth defendant in the suit.

The suit properties measure 12 acres approximately, of which 7 acres are tank-fed nanja lands, and the rest are lands irrigated by a well. According to the plaintiff, in order to make provision for the marriage of defendants 3 and 4 and also to provide for the illegitimate son, the fifth defendant, the first defendant offered to sell his property for a sum of Rs. 45,000 in the presence of P.Ws. 2 to 6 and the price was settled at a sum of Rs. 42,5000. An agreement dated 16th March, 1974 on a stamp paper, was entered into between the plaintiff and the first defendant and it was duly registered before the Sub-Registrar, Andiyur. A sum of Rs. 5,000 was paid as advance on the date of the agreement and the balance was to be paid at the time of the execution of the sale deed. Out of the balance of Rs. 37,500 the plaintiff was to deposit Rs. 10,000 to the credit of the first defendant as security for payment of the maintenance decreed in favour of the second defendant. The amount in deposit was not to be withdrawn during the life-time of the second defendant and the interest accruing on the deposit was to be paid to her in accordance with the decree in her favour. The balance of Rs. 27,500 was to be paid at the time of the execution of the sale deed. The sale was to completed by 19th May, 1964. The first defendant agreed to deliver possession of the suit property on the date of the execution of the sale deed. According to the plaintiff, when the second defendant and her relations came to know of the agreement, dt. 16th March, 1964, (Ex. A2) they began to intervene and induce the first defendant to resile from the contract and appropriate the properties to themselves. It was alleged that the first defendant then began to demand a higher price for abiding by the agreement. As the plaintiff did not agree to pay the higher price demanded and had insisted on the contract being performed as agreed, the first defendant''s daughter with the help of their maternal uncle filed O.S. No. 54 of 1964 on the file of the Sub-Court Erode on 31st March, 1964 for their maintenance and marriage expenses. An injunction restraining the plaintiff from enforcing the agreement was obtained in the said suit. The plaintiff issued a notice on 6th April, 1964, to the first defendant and also to the next friend (maternal uncle of defendants 3 and 4). But, the first defendant evaded the service of the same. It is alleged by the plaintiff that the first defendant made a pretence of contesting the said suit and collusively allowed it to be decreed as prayed for with a charge over the properties. On 5th June, 1964 the sixth defendant, as the guardian and next friend of the fifth defendant, filed O.S. No. 78 of 1964 on the file of the Sub-Court, Erode, impleading the plaintiff as the second defendant attacking the agreement for the purchase of the suit properties. Thereafter, the second defendant at the alleged instigation of the first defendant claimed enhanced maintenance and filed O.S. No. 500 of 1966 on the file of the District Munsif''s Court, Gobi, at the rate of Rs. 213 per mensem and the suit was got collusively decreed ex parte with a charge over the suit properties. The suit properties were also attempted to be brought to sale by the second defendant in execution of her maintenance decree and the plaintiff had to deposit a sum of Rs. 1,107 into Court to avert the sale. The plaintiff expressed his readiness and willingness to deposit the balance of consideration into Court and to meet the cost of sale. The first defendant had to remove the encumbrances and give a good title to the plaintiff. The suit was, therefore, filed by the plaintiff with a prayer for directing the first defendant to execute a conveyance of the suit properties in his favour within a time to be fixed by the Court and in default to get the conveyance executed through an Officer of the Court after declaring that the judgment was binding on all the defendants. There was also a prayer for possession of the properties and future mesne profits.

The first defendant contested the suit on the ground that he had not entered into any such agreement as was sought to be made out, that there was no necessity for him to alienate the lands, that they were yielding substantial income, that he was always possessed of cash and never had any debts, and that the plaintiff, who was on inimical terms with him, with the help of others, had brought about a fraudulent agreement. The receipt of Rs. 5,000 as advance was denied. The first defendant denied also that he was responsible for the other suits filed by the second defendant or his daughters, defendants 3 and 4, or defendants 5 and 6.

The other defendants also filed separate written statements and they challenged the truth and the genuineness of the agreement, Ex.A-2 and also stated that, in any event their rights could not be prejudiced by the agreement in favour of the plaintiff. The following are the issues framed for trial :-

[Issues Omitted Ed.]

The plaintiff examined 9 witnesses including himself and on behalf of the defendants. Four persons gave evidence of whom the first defendant was D.W.3 and the second defendant was D.W.4. A large number of documents was marked on either side. The trial Court, held, after discussing the evidence that the agreement dated, 16th March, 1964, was true, genuine and enforceable, that the necessity alleged in paragraph 7 of the plaint for the sale of the suit properties was true, that an advance of Rs. 5,000 was paid, and that the agreement had not been brought about by fraud or misrepresentation. The plaintiff was also found to be ready and willing to perform his part of the contract and had also the necessary means to purchase the properties. The market value of the properties was founded to be Rs. 42,500. The result of the findings was that the suit was decreed for specific performance, subject to a charge in favour of defendants 2 to 4. The balance of consideration of Rs. 37,500 was to be deposited within one month from the date of decree. The sale deed was to be executed within a period of two months, failing which the plaintiff was entitled to have the sale deed executed through Court. The first defendant was allowed to withdraw the balance of sale consideration, viz., Rs. 37,500 after executing the document.

Against the judgment and decree so passed, the first defendant has filed the appeal containing that there was no agreement for sale in favour of the plaintiff and that the agreement had been brought about by fraud. The plaintiff himself has filed the other appeal. His contention is that the direction for allowing the first defendant to withdraw the balance of consideration was wrong and that the first defendant was bound to make a proper arrangement for the maintenance and provisions for defendants 2 to 4.

Soon after the filing of the appeal C.M.P. No. 10936 of 1976 was filed praying for the stay of the execution of the decree. An interim stay was granted and it was made absolute on condition that a sum of Rs. 5,000 was deposited in the trial Court. When the deposit was made, the plaintiff was permitted to withdraw the same without furnishing any security. There was no stay as to costs. The sum of Rs. 5,000 to be deposited was towards the mesne profits due till 30th September, 1977. Their several other C.M.P''s also came to be filed during the pendency of the appeal. By an order, dt. 24th July, 1978, Sathiadev, J. held that first defendant, without prejudice to his contentions in the appeal, should pay a sum of Rs. 5,000 every year. The sum of Rs. 37,500 directed to be deposited by the trial Court under the decree was duly deposited by the plaintiff. In order to enable the second defendant to get her maintenance, the sum of Rs. 37,500 was directed to be deposited in a Nationalised Bank for a period of five years, the income from which was to be utilised for payment of Rs. 639 during every quarter at the rate of 213 per month. There was a Letters Patent Appeal against the order of Sathiadev, J. in L. P. A. No. 189 of 1978. That order was confirmed.

On or about 16th January, 1979, the plaintiff filed E.P.6 of 1979 for realisation of the costs of Rs. 5,258 granted in his favour against which there was no stay. On 28th February, 1979, the first defendant filed a counter in the said E.P. in which he stated that there was a huge amount in Court deposit to his credit and that the decree-holder (Plaintiff) could very well proceed against the said amount. On the basis of this averment in the counter affidavit, the plaintiff has filed the present petition (C.M.P. 7257 of 1980) contending that the first defendant-appellant having elected to treat the balance of chase price deposited in Court as his own and to refer to it as being available for meeting liability for the costs, could not pursue the appeal filed by him. The first defendant has filed a counter-affidavit stating that there was no election on his part to treat the amount in deposit as his own, that he had made no arrangements for their withdrawal and that in fact he had been fighting the appeal tooth and nail as would be clear from several interim proceedings. A reply affidavit has been filed by the plaintiff reiterating that the huge amount available in Court could only refer to the deposit of Rs. 37,500 and that the first defendant could not pursue the appeal after having elected to treat the amount as his own.

Mr. S. Gopalaratnam, the learned counsel for the respondent contended that the first defendant could not approbate and reprobate and that the counter-affidavit filed in the execution petition amounted to an election, so that he could not pursue the appeal. Mr. Kesava Iyengar, the learned counsel for the first defendant submitted that there was no question of any election to be spelt out of the statement in the counter-affidavit to the effect that a large amount was available in Court, that the only purpose of the Counter-affidavit was to avert the attempt of the plaintiff to attach the fund belonging to the first defendant in Sakthi Sugars and that the relevant decision of the Supreme Court and the provisions of S. 144, C.P.C., would go to establish that the competency of the appeal was not in any manner affected by the conduct of his client.

In Volume 16, Fourth Edition, paragraph 1507 of Halsburys Laws of England, the doctrine of approbation and reprobation is dealt with in the following passage :

On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile; and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his (sic).

Thus a plaintiff, having two inconsistent claims who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it, but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them.

The common law principle which puts a main to his election between alternative inconsistent courses of conduct has no connection with the equitable doctrine of election and relates mainly, though not exclusively, to alternative remedies in a Court of justice.

This doctrine has its origin in Scots Law and it has also been applied in England. In Dexters Limited v. Hill Cresh Oil Company (Bradford) Limited 1926-1-K.B. 348, the doctrine came to be considered in relation to an award. Three questions arose for the decision of the Arbitrator, in connection with the contract of sale of goods, viz., (1) whether Dexters were entitled to any damages; (2) whether they were entitled to �.2,000 as damages applying one measure of damages, and (3) whether they were entitled to � 37,451.2s.5d. applying another measure of damages ? The umpire decided to award damages of �. 2,000. He, however, expressed his view that if the Court was of the opinion, on the facts stated, that the damages should be assessed on the basis of the amount, which the buyers had to pay to their sub-purchasers, then they would be entitled to recover �. 37,451,2s.5d. The matter came before Roche, J. The learned Judge held that there was a breach of contract and that Dexters were entitled to damages of �. 2,000. The day after that decision Dexters through their solicitors asked for the remittance of �. 2,000. The amount was immediately sent by the other party and the solicitors of Dexters sent a receipt for the amount on 25th August, 1925. Four days afterwards, they served a notice of appeal. The contention urged on behalf of the respondents was that Dexters having accepted payment under the first alternative award, and thereby recognised and adopted it as a good and valid award, they could not be heard to contend that any higher amount was liable to be paid to them. The Court of Appeal accepted this submission and dismissed the appeal. In doing so, it was observed by Warington, L.J. at page 356 as follows :

It seems to me perfectly hopeless to contend that they (Dexters) are entitled to give that notice of appeal after they had deliberately accepted the first alternative award as the award of the umpire, and put their opponents in the position of having debarred themselves from contending that third award was the right one.

Similarly at page 385 Scrutton, L.J. stated as follows:

It startles me to hear it argued that a person can say the judgment as wrong and at the same time accept payment under the judgment as being right. That seems to me a misapplication of the rule, and for the same reason I think the appellants who have acted on the award by taking money under it have debarred themselves from appealing against it and saying it was wrong.

There was no reference to any earlier case in the said judgment except to a decision in Verschures Creameries Limited v. Hull and Netherlands Steamship Company (sic). In the decision cited the facts were as follows : The goods were delivered by the owners of goods to the forwarding agents to be carried to Hull and thence forwarded to a customer in Manchester. When the goods arrived at Hull, the owners instructed the forwarding agents not to deliver the goods to the customer, but the goods were nevertheless delivered to him. The owners thereupon invoiced the goods to the customer and sued him and recovered judgment for the price of goods sold and delivered, and then, failing to get satisfaction, they took pleadings in bankruptcy against him. Thereafter they sought to proceed against the forwarding agents for negligence and breach of duty. It was held that they could not sue the forwarding agents. It was pointed out by Bankes, L.J. that when the plaintiffs in that case discovered that there was a wrong delivery, they had a right to elect, they might refuse to recognise the action of the forwarding agents in delivering the goods to the customer and sue them for conversion or they might recognise and adopt the act of the forwarding agents and sue the customer for goods sold delivered. They having elected to sue the customer and to treat the delivery to him as an authorised delivery, they could not treat the same act as a misdelivery and to do so would be to approbate and reprobate. To the same effect are the observations of Scrutton L.J. and Atkin, L.J.

There are, however, two decisions, of higher authority, viz., of the House of Lords which appear to strike a different note. The first case is reported as Evans v. Bartlam 1937-2-All. E.R. 646. That was a case in which there was an ex parte judgment, which was set aside by the Master. On appeal the Judge in Chambers, granted the application and gave leave to defend. The Court of Appeal by majority directed that the order of the Master be restored. The House of Lords reversed the decision of the Court of Appeal. In the course of the judgment, reference was made to what happened at the earlier stage. When the matter was pending before the Master the defendant had applied for the matter to stand over in order to enable him to see that he could arrange to pay, and the plaintiff had consented to let the matters stand over for seven days. It was this conduct of the parties that was taken into account by the majority in the Court of Appeal, who stated that the defendant could not have appealed against the judgment of the Judge in Chambers after having taken the benefit allowing the matter to stand over for seven days. As regards this aspect Lord Atkin stated at page 649 as follows:

I find nothing in the facts analogous to cases where a party, haying obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment-debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude him thereafter from seeking to set aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election. It is a simple answer to say that, to infer election, it must be shown that the person concerned had full knowledge of the various rights amongst which he elects. There is here no evidence that the defendant, at the time he asked for and received time, had any knowledge of his right to apply to set the judgment aside. I cannot think that there is any presumption that he knew of the remedy, either sufficiently for the purpose of the doctrine as to election, or at all. For my part, I am not prepared to accept the view that there is in law any presumption that anyone, even a Judge, knows all the rules and orders of the Supreme Court. The fact is that there is not, and never has been, a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.

At page 652 Lord Russell of Killowen observed as follows:--

the doctrine of approbation and reprobation requires for its foundation "inconsistency of conduct as where a man having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit. To obtain a stay of execution of a judgment is not the acceptance of any benefit conferred by the judgment. The doctrine of estoppel requires the statement of fact, upon the faith of toe truth of which another alters his position."

At Page 653 Lord Wright observed as follows:--

Election is a question of fact. I can find no facts here to show that the elements of election, such as intention, or knowledge of his legal rights, were present. Nor can I find any evidence to justify the inference that the appellant had undertaken not to dispute the validity of the judgment. Such an undertaking, if given for sufficient consideration, so as to bind the appellant, might have supported the conclusion of the Court of Appeal; nothing less would have sufficed, though even then it would, I am inclined to think, still be only a matter to be considered in the exercise by the Court of its statutory discretion. But, from the bare evidence that the appellant had requested and been granted a few days time, I find it impossible to draw the inference necessary to justify the conclusion.

The matter has been more elaborately considered in Lissenden v. C.A.V. Bosch Limited 1940 A.C. 412=1940 1 All. E.R. 425. Lissenden obtained an award under the Workmen''s Compensation Act and was paid �663 at the rate of 12s.3d. per week for partial incapacity from 5th October, 1936 till 31st October, 1938. From this award Lissenden appealed, claiming that he was entitled to be paid the weekly sum of 12 s. 3d. even beyond 31st October 1938, so long as he was incapacitated. When the matter came before the Court of Appeal, a preliminary objection was taken on the ground that he could not prosecute the appeal, as he had accepted the compensation and the costs awarded and had thereby approbated the award. The Court of Appeal felt bound by the decision in Johnson v. Newton Fire Extinguisher Company Limited (1913) 2 K.B. 111 and had upheld the preliminary objection. In the arguments before the House of Lords as reported in the Appeal Cases the decision in Dexters Limited v. Hill Crest Oil Company (Bradford) Limited (1926) 1 K.B. 348 was referred to and was distinguished on the ground that the Court of Appeal in that case was not concerned with a case where there is a statutory right of appeal. There was no more reference to be found to that case in the several speeches of their Lordships. The decision in Johnson v. Newton Fire Extinguisher Company Limited (1913) 2 K.B. 111 was overruled. At page 430, Viscount Maugham spoke as follows:

Whether we are dealing with a judgment or an award by a county court Judge under the Workmen''s Compensation Act, it is, I think, clear : (i) that there is no one in the position of a testator or donor; and (ii) that the tribunal cannot be supposed to be intentionally putting the successful litigant to his election between two rights, since his right of appeal is his by statute and rule, and does not depend on the bounty of the Judge... The Tribunal is deciding rights, and has no option but to adjudge or award to a litigant, that to which he is entitled and cannot be supposed to be imposing limits on the powers of the appellate tribunal.

Again at page 431 it was observed as follows :

It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than the principles either of equity or of justice.

Lord Atkin pointed out that if a party took a benefit under an award, he could not afterwards, be heard to say that it was entirely invalid, for, if so, he would have had no right to the benefit he took, and that even then the question was merely one of restitution and that such a case was no analogy to the case before the House of Lord. At page 436 he stated the principle as follows :

In cases where the doctrine does apply, the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge, adopts the one, he cannot afterwards assert the other.

He further observed that it was possible that the only question was whether the party appealing had so conducted himself as to make restitution impossible or inequitable. Lord Wright at page 440 observed as follows :

The workman, when he decides to appeal, exercises a choice between appealing and not appealing and when he decides to appeal, exercises a choice whether he will appeal against the whole or against any part or the award. In the latter event he is exercising a legal right, just as in the case of at appeal in on ordinary action. The part of the order from which he does not appeal especially if it is not attached, but is accepted by the opposite party gives him a present vested right, independently of the separate matters on which he desires to appeal and independently of the question, whether or not he appeals. I do not see why he should not be entitled to receive or even to enforce payment of, what the Court has awarded him, or how that can affect the right to appeal against another independent part of the judgment.

Thus in English law the approach is whether there is election of alternative remedies. The doctrine belongs to the species of estoppel. The test is whether there is any inconsistent intention or conduct on the part of the appellant to approbate the judgment appealed against by taking a benefit therefrom and to reprobate the judgment by appealing against it. There is in the present case, no actual benefit by the appellant (the first defendant in the present case). He merely pointed out to the existence of a large amount in Court, so that there was no need to proceed against any amount due from third parties by way of attachment or otherwise. The doctrine is a rule of equity and equity would not at all be served by applying it to the facts here. The fact that though the decision in Dexters Limited v. Hill Crest Oil Company (Bradford) Limited (1926) 1 K.B. 348 was cited, it did not find a place in Lissender''s case 1940 A.C. 412 shows that the said decision is to be confined to cases where a person had admitted and accepted the payment under an award and was trying to attack it later.

Mr. S. Gopalaratnam, the learned counsel for the plaintiff-respondent brought to our notice several other decisions--one, of the Privy Council, and the Supreme Court. Before dealing with the cases cited by him, we would first refer to the decision relied on strongly by Mr. Kesava Iyengar and reported in Bhau Ram v. B. Baijnath Singh and others 1961-2-M.L.J. (S.C.) 165=A.I.R. 1961 S.C 1327. That decision was rendered by five Judges of the Supreme Court and the judgment of the majority was rendered by Mudholkar, J., while A.K. Sarkar, J. (as he then was), dissented from it. The appeal before the Supreme Court had its origin in a suit instituted by Baijnath Singh for the enforcement of the right of pre-emption against the appellant. The trial Court dismissed the suit; but on appeal it was decreed. There was an appeal to the Supreme Court by the defendant and there was a preliminary objection raised by the plaintiff that the defendant was precluded from proceeding with the appeal on the ground that by withdrawing the pre-emption price he must be deemed to have accepted the decree and that he could not, therefore, be heard to say that the decree was erroneous. Reliance was placed on the doctrine that a person could not be allowed to approbate and reprobate. Referring to the decision of the House of Lords in Lissenden v. C.A.V. Basch Limited 1940 A.C. 412, Mudholkar, J., observed at page 363 that according to the House of Lords it was to cases, in which a party had so conducted himself as to make restitution impossible or inequitable, that the principle of approbate and reprobate could apply and at page 364 it was added as follows:

It seems to us that a statutory right of appeal cannot be presumed to have come to an end, because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler''s case 1848 4 Ex. 187, to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant by withdrawing the pre-emption price has not taken a benefit de hors the merits. Besides, this is not a case where restitution is impossible or inequitable. Further, it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant, and, therefore, his act in withdrawing the pre-emption price cannot preclude him for continuing in appeal. We, therefore, overrule the preliminary objection.

In our opinion, the above decision gives a complete answer to the contention of Mr. S. Gopalaratnam.

The decision of the Privy Council cited for the plaintiff, was rendered in Saratkumari Dasi v. Amulya Dan Kundu and others 1923-17-L.W. 481=A.I.R. 1923 P.C. 13. In that case after obtaining leave to appeal to the Privy Council, the appellant obtained an order that a sum of Rs. 4,000 out of Rs. 13,500 standing to his credit, as a result of the deposit made in pursuance of the decree, should be held as security for the costs. It was contended that this action amounted to an adoption by the appellant of the decree while at the same time she was impeaching it, and that she was, therefore, estopped from doing so. This contention was rejected. We are of the view that the decision of the Privy Council is consistent with the law as pronounced by the Supreme Court, and it would support the case of Mr. Kesava Iyengar, as any reference to the amount lying in Court in the counter-affidavit cannot amount to an election of remedy.

There was another decision of the Privy Council, which according to Mr. Gopalaratnam had not been noticed by the Supreme Court. The decision cited by him was Kodot Ambu Nair v. Echikan Cherekere Kelu Nair 1933-65-M.L.J. 10=38 L.W. 29; 56 Mad. 737=1933 P.C. 167. In this decision, a suit on a mortgage executed in 1897 was compromised on 2nd January, 1899. The mortgagors were to pay the mortgagee within three years a sum of Rs. 31,000 together with the yearly rent in kind. In default of payment of Rs. 31,000 the mortgagee was to be entitled to obtain possession and to retain the same as usufructuary mortgagee. The mortgagors were to have the right to redeem in any year thereafter on payment Rs. 31,000 and to obtain delivery of the property by taking out execution". The rent was not paid and, therefore, possession was taken by the mortgagee. The mortgagors filed a suit for re-emption. It was contended that their only remedy was by execution of the compromise decree. If the remedy was only by execution, then it was long ago time barred. The Privy Council held that the mortgagors'' right was not confined to execution, and that they had independent remedy of a suit. In the course of the judgment reference was made to the conduct of the appellant before the Privy Council as showing that even he did not consider that the right of the mortgagors was merely confined to the execution of the compromise decree. Though the question of the doctrine of election or approbate and reprobate is referred to, still we do not consider that the said decision has any bearing on the question of the maintainability of an appeal. The doctrine of election was referred to only in the context of how the parties themselves understood the compromise decree.

The decision strongly relied on by Mr. S. Gopalaratnam is that reported in R.C. Chandiok and another v. Chuni Lal Sabhar wal and others 1971 2 S.C.R. 573=1971 S.C. 1238. A plot of land belonging to the Rehabilitation Ministry had been allotted to the appellant, who entered into an agreement with the respondents and received a part of the purchase money. On the date of the contract to sell the respondent had no document in his favour, nor had he obtained the sanction of the Ministry for transferring the plot. The sanction was granted after some years. But, the respondent did not inform the appellant. On coming to know of the sanction, the appellant filed the suit claiming specific performance of the contract. The trial Court refused to decree specific performance, but granted a decree for the refund of the amount paid. The appellant applied to the trial Court for an injunction restraining the respondent from disposing of the property. But, the injunction was not granted, and the plot was sold actually to a third party. The appellant filed an appeal in the High Court contesting the refusal to decree the suit for specific performance. During the pendency of the appeal, the amount decreed by the trial Court was deposited by the respondent. But, the appellant did not withdraw the amount. The High Court held that since during the pendency of the appeal the appellant had executed the decree and an amount of Rs. 7,500 had been deposited by the respondent pursuant to the execution of the proceedings, the appellant was disentitled to a decree for specific performance. In dealing with this point the Supreme Court referred to Dexters Limited v. Hill Crest Oil Company (Bradford) Limited (1926) 1 K.B. 348. It was pointed out that the appellant had, even in the trial Court, made it clear that he was not willing to accept the judgment of the trial Court and that he was going to file an appeal and that only on that basis he applied for an injunction. An appeal was, in fact, preferred and pressed before the High Court. It was held that the conduct of the appellant was not such as to disentitle him from prosecuting the appeal. The decision ultimately went against the plea of estoppel or election. Thus, this case cannot be taken as an authority for the proposition that the appeal would be incompetent in a case like this. We do not find that this case runs counter to the decision of the Supreme Court in Bhoa Ram v. Baijnath Singh and others (1961) 2 S.C.J. 85=(1961) 2 M.L.J. (S.C.) 165=1961 S.C. 132. Even assuming that it is to be so understood, as pointed out in Mattulal (1975) S.C.R. 127=A.I.R. 1974 S.C. 1596 v. Radhe Lal (1961) 2 S.C.J. 85=(1961) 2 M.L.J. (S.C.) 165=1961 S.C. 132 the decision of a larger Bench is to be followed, and the decision of the larger Bench in the present case is reported in Bhau Ram v. B. Baijnath Singh and others (1961) 2 S.C.J. 85=(1961) 2 M.L.J. (S.C.) 165=1961 S.C. 132.

We, therefore, hold that there is no substance in the preliminary objection that the first defendant-appellant has conducted himself in such a manner as to disentitle him from prosecuting the appeal and that the appeal is maintainable. Very strong reliance was placed by Mr. S. Gopalaratnam on the decision of a Bench of this Court in Sakku Bai Ammal v. R. Babu Reddiar alias R.B. Reddiar and others (1977) 1 M.L.J. 211=90 L.W. 110:I.L.R. (1976) 2 Mad. 317=A.I.R. 1977 Mad. 223. The plaintiff in that suit prayed for a decree for specific performance of an agreement, dt. 10th June, 1965, of sale of certain properties for a sum of Rs. 18,500. A sum of Rs. 8,001 was paid on the date of the registration of the agreement and the balance was to be paid at the time of the registration of the sale deed. A period of two years was available for performance of the contract. If the plaintiff committed default, she had to forfeit a sum of Rs. 1,000 from the sum of Rs. 8,001 and the balance was liable to be returned to her. As the contract was not performed by the other side, a suit for specific performance was laid. The trial Judge gave a money decree in favour of the plaintiff for a sum of Rs. 8,000 with interest at 6% per annum and also a decree for damages in a sum of Rs. 5,500. The decree for damages was passed in pursuance of the alternative prayer in the suit for grant of damages. As the relief of specific performance had not been granted, the plaintiff filed an appeal and the question was whether the said appeal could be pursued. A Division Bench of this Court consisting of Ramaprasada Rao, J. (as he then was) and Ratnavel Pandian, J. held that the appeal was incompetent. In doing so, the learned Judges followed the decision of the Supreme Court in Ramesh Chandra v. Chunni Lal (1971) 2 S.C.R. 573 = (1971) 1 S.C.J. 169 which followed the decision of the Court of Appeal in Dexters Limited v. Hill Cresh Oil Company (Bradford) Limited (1926) 1 K.B. 348. Unfortunately, the earlier decision of the Supreme Court in Bhau Ram v. B. Baijnath Singh and others (1961) 2 S.C.J. 89=(1962) 1 S.C.R. 358 had not been brought to their notice. We have already examined the two decisions of the Supreme Court and we have come to the conclusion that there is nothing even in the second case, which would stand in the way of the appellant pursuing the present appeal. In any event, as the said decision does not appear to be consistent with the decision of a larger Bench of the Supreme Court it would not be proper for us to follow this decision in preference to the law laid down by the Supreme Court. In fact, this decision of the Bench has also been noticed by one of us (Natarajan, J.) in Manickam alias Manickavasagam and others v. Ramaswamy Gounder and another (1980) 93 L.W. 780, wherein it has been pointed out that unless a party was shown to have fully approbated to an alternative relief granted to him, he would not stand legally precluded from reprobating the decree and re-agitating his claim for the other relief, which was not given to him. In that particular case, the alternative relief of partition had been claimed in a suit for declaration of title and injunction. It was held that the defendants'' contention that the plaintiff was not an aggrieved person, because he got the relief of partition, could not be sustained. In any event, the said decision of the Division Bench would have to be confined to a case of alternative relief and not to a case like the one before us where the question is whether the first defendant having pointed out the existence of a large amount in court deposit at the time of the execution of the decree for costs was precluded from pursuing his statutory right of appeal.

In fact, as rightly pointed out by Mr. Kesava Iyengar, an appeal does not operate as a stay of proceedings of the decree or order appealed from, except so far as the Appellate Court may order, nor does an execution of a decree get stayed by reason only of an appeal having been preferred from the decree. See : O.41, R.5 (1) of the Code of Civil Procedure. S.144has been enacted only for the purpose of granting restitution in a case where a decree might have been executed during the pendency of an appeal against it, and the decree so executed was set aside on appeal partially or totally. The appellate jurisdiction is a statutory one and so long as there is in the statute no restriction upon the jurisdiction of the Court, it would be stultifying a right of an appeal if it is to be held that the appeal is incompetent. The exception to this principle is to be found only in those cases where the plaintiff has made an election and with full knowledge of his legal rights has abandoned his right of appeal. The rule of election is a rule of equity and neither justice nor equity is promoted by the acceptance of the contention of the plaintiff in the present case.

We shall now turn to the merits of the appeal filed by the first defendant.

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[After rejecting the contention that the agreement, dt., 16th March, 1964 (Ex A2) was void, and holding that there was no proof of any fraud or coercion, the learned Judge observed:]

...The validity of the agreement cannot thus be open to question.

Mr. Kesava Iyengar criticised the manner in which the Sub-Registrar has made the endorsement as if he knew both the plaintiff as well as the first defendant. He was prepared to grant the notoriety of the plaintiff, but, according to him, his client, the first defendant, was an obscure person, who was not or could not have bean known to the Sub Registrar. It is true that there are no identifying witnesses before the Sub Registrar. S.35 (1) (a) of the Indian Registration Act, 1908, provides that if all the persons executing the document appear personally before the registering officer and are personally known to him, then he shall register the document in accordance with the Act. Therefore, it was open to the registering authority to register a document without any identification by any identifying witnesses, if the parties were known to him. It was not as if there were no persons to serve as identifying witnesses. Even the first defendant in his evidence admits that several persons constituted the party which went to Andhiyur. Therefore, two of them could have easily been summoned to the Sub-Registrar''s office for identification, if necessary. The first defendant has not also examined the Sub Registrar in order to support his statement that he was not known to Sub Registrar. The result of the above discussion is that Ex, A2 deserves to be held as duly executed and registered.............

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Another mode of attack employed by Mr. Kesava Iyengar for his client was that the whole transaction was an unconscionable one and was also oppressive. He referred in this connection to S.20 (2) of the Specific Relief Act, 1963. S.29 (1) defines the jurisdiction of the Court in a suit for specific performance. The grant of such decree is discretionary and the Court is not bound to grant it merely because it is lawful to do so. The discretion of the Court is not, however, arbitrary but sound reasonable, guided by judicial principles and and capable of correction by a Court of appeal. Cl.(2) deals with the circumstances under which the specific performance need not be granted or, in other words, may be refused. The section may be reproduced to the extent, relevant here :--

(2) The following are cases in which the Court may properly exercise discretion not to decree specific performance...

(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) Where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1. :--

Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in this nature, shall not be deemed to constitute an unfair advantage within the meaning of Cl.(a) or hardship within the meaning of Cl.(b).

Explanation 2,:--

The question whether the performance of a contract would involve hardship on the defendant within the meaning of Cl.(b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

Reliance was placed before us on sub-Cl.(b) and (c) of Cl.(2) extracted above. It is, therefore, enough to concentrate our attention on those two sub-clauses to find out whether there are any circumstances which would justify the Court in not granting the relief of specific performance.

A good part of the argument of Mr. Kesava Iyengar was devoted to establishing that the value of the properties sought to be transferred under Ex. A2 was much more than Rs. 42,500, as the income therefrom was as much as Rs. 15,000 per annum. He relied for the purpose of showing that the income of the properties was Rs. 15,000 p.a., on the admission of the plaintiff himself in the witness box. It is in this connection that C. M. P. No. 12798 of 1980 was filed for the first respondent in A.S. No. 647 of 1976. In the course of the cross-examination of P.W. 7 on 6th July, 1976, reference was made to the proceedings in O.S. No. 54 of 1964. That was a suit filed by defendants 3 and 4 for their maintenance and provision for marriage. The suit itself was filed on 31st March, 1964. We shall have to deal with the suit in detail a little later. But, at this stage, it is enough to mention that in the pleadings in the said suit there was an allegation that a sum of Rs. 15,000 per annum was the income earned from these lands. The plaintiff has been impleaded in the said suit as the second defendant. He bad also been examined therein as a witness.

Similarly, there was a partition suit, O.S. No. 78 of 1964 filed on behalf of the fifth defendant by his next friend, the sixth defendant. While the plaintiff described her as a concubine, the first defendant described her as the second wife. The marriage is said to have taken place on the 4th March, 1955. It is not in dispute that there was no dissolution of the marriage between the first defendant and the second defendant. During the subsistence of the said marriage, there could have been no second marriage under the law as it applied to the Hindus of this State. Thus, the status of the sixth defendant could only be that of the concubine. In the said suit also there was an allegation that the income from the lands was about Rs. 15,000 per annum.

The plaintiff as P.W. 7 was asked as to whether he had denied these statements at the time either in the pleadings or in his evidence, in those cases. He stated in the course of the cross-examination on 6th July, 1976, that he did not remember whether he denied the said statements in his pleadings. He, however, admitted that when he gave evidence he had not denied it.

It is in this connection that a copy of his deposition as D.W.1 in O.S. No. 54 of 1964 in the Sub-Court, Erode, is sought to be marked, and similarly the deposition of the plaintiff as D.W.1 in O. S. No. 78 of 1964 is sought to be marked. In the first of the depositions, viz., O. S. No. 54 of 1964 he stated that the income would be Rs. 4,000 and not Rs. 15,000. In the second deposition in O.S. No. 78 of 1964 he stated that the income would be between Rs. 2,000 and Rs. 4,000.

The petition for reception of additional evidence is stoutly opposed by Mr. Kesava Iyengar. He referred us to O.41, R.27 of the C.P.C., as not entitling any party to produce additional evidence, whether oral or documentary, in the Appellate Court. However, if the trial Court had refused to admit evidence, which ought to have been admitted, or the Appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court can allow such evidence or document to be produced or witness to be examined. His point was that the plaintiff would not have been unaware of what he deposed on the earlier occasions and that if in spite of it he stated that the income was around Rs. 15,000, then he should be correct. The contention for the other side is that the plaintiff proceeded on the basis that the cross-examining counsel had with him the relevant document when he put the question and that he did not expect responsible counsel to mislead him. When, however, he found that he had been misled, he came forward with an application for reception of additional evidence to show that there was no admission on his part.

If really Mr. Kesava Iyengar did not rely on any so called admission on the part of the plaintiff, it would have been unnecessary for us to go into the additional evidence. When he persists in relying on his admission, it is necessary to find out whether there was any such admission on the part of the plaintiff in the earlier proceedings. If the income was Rs. 15,000 per annum then the inadequacy of consideration would, if necessary, have to be gone into. The extent of income would also bear on the truth about the transaction. Thus, in order to adjudicate on the pleas and contentions of the first defendant, it is necessary to look into into the additional evidence. Mr. Kesava Iyengar''s point was that it would be necessary to examine the plaintiff again with reference to the said material. We are unable to find any necessity for examining the plaintiff over again. He produces the materials only for the purpose of contradicting the misleading suggestion made by the counsel in the court below at the time of his cross-examination. The certified copy of the deposition having been issued by the Court, it does not need to be proved by any further evidence. The learned counsel for the respondents in the C.M.P., did not also suggest any infirmity in the certified copy, which would require our further scrutiny. Being documents issued by the Court, we think that these these two pieces of evidence may be marked as Exs. A75 and A76. In the light of Exs. A75 and A76 we are amply satisfied that there is no admission on the part of the plaintiff as to the income from the properties being about Rs. 15,000 per annum.

As stated in the first explanation to S.20(2), mere inadequacy of consideration would not bring the transaction within the scope of Cl.(b) or (c) of S.20(2) of the Specific Relief Act. It would, in our view, be not necessary to enter into any discussion of the inadequacy of consideration. In the light of the income being only around Rs. 4,000, there is nothing improbable in the plaintiff and the first defendant entering into an agreement for sale of the properties for a sum of Rs. 42,500. Though it is unnecessary in view of the Explanation I to go into the inadequacy of consideration, in deference to the contention advanced vigorously by Mr. Kesava Iyengar, we would briefly examine the question of value also.......

[The discussion of facts is omitted--Ed.]

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......The vague evidence regarding the increase in prices after Sakthi Sugars Factory came into existence is not such as to lead to any indubitable inference that the property price was so much beyond Rs. 42,500 with reference to the date under consideration, that it would have been improbable for the first defendant to have agreed to transfer the lands at that figure. Thus, considered from this aspect also, we do not find any merit in the contention that the properties have been sought to be parted with under Ex.A2 at such a low price so as to show that it is an unconscionable transaction.

The learned counsel relied on the hardship to the first defendant in case he was found to have parted with these lands under Ex.A2. The hardship referred to was that the first defendant was a cultivator or a ryot and that he would be deprived of the means of his sustenance if the transaction were to be upheld. Cl.(b) contemplates the performance of the contract involving some hardship on the defendant, which he did not foresee if specific performance is to be refused. When he entered into a transaction of this kind with eyes wide open, he should have been aware of the consequences therefrom. It is in this context that we have to consider the statement of P.W.7 in the witness box that the first defendant, after discharging his obligations, wanted to quietly settle down somewhere else. The village in which his wife lived was so near the one where the lands are situate that he could have considered it necessary to remove himself to some other place so that he would have some more life. At any rate we do not find any hardship on the first defendant which he did not or could not foresee . Even in his deposition the first defendant has not spoken to the existence of any such hardship, which would require consideration in the light of Cl.(b) of S.20 (2) of the Specific Relief Act, 1963. There is also nothing inequitable in the transaction, as such. At any rate, no circumstance of any such inequity has been made out so as to justify Cl.(c) of S.20 (2) of Act being invoked. In fact, when there is no pleading of any such hardship or inequity in the written statement of the first defendant, it would be unnecessary and pointless to dwell on it further......

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The only aspect that survives for consideration is whether the plaintiff is entitled to the specific performance in view of S.16of the Specific Relief Act. The learned counsel in this connection, relied on S.16, Cl.(b) and (c). The provision is reproduced below:--

Specific performance of a contract cannot be enforced in favour of a person--

(a) xxx xxxx

(b) Who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) 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 defendant.

Explanation--

For the purposes of clause (c),--

(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

It was not the case of the first defendant that he came within Cl. (a) of S.16. We have thus to scrutinise the facts to see if Cl.(b) and (c) are applicable here.

Cl.(b) would apply to the case where a person who seeks specific performance, had become incapable of performing the contract or violated any essential term of the contract or acted in fraud of the contract or had wilfully acted at variance with it. The essential terms of the contract are : Out of the sum of Rs. 37,500 payable at the time of the execution of the document, the plaintiff had to deposit Rs. 10,000 to the credit of the first defendant as security for his paying the maintenance amount decreed in favour of the second defendant. It is the balance of Rs. 27,500 that had to be paid at the time of the execution of the sale deed. The sale was to be completed before 19th May, 1964 at the expense of the plaintiff. The first defendant was to deliver possession to the plaintiff on the day of the execution of the sale deed. The submission of Mr. Kesava Iyengar is that the plaintiff had not taken any steps for depositing the sum of Rs. 10,000 or for paying off the balance of Rs. 27,500 or for completing the transaction before 19th May, 1964.

[The discussion on facts is omitted : Ed.]

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...There was no plea that the first defendant at any time required the plaintiff to perform his part of the contract, and he failed to do so. It is well-settled that time is not the essence of a contract for the sale of the immovable property. If the first defendant wanted to make time to be of the essence, he ought to have given a notice to the plaintiff fixing a reasonable time for performance of his part of the contract. In the absence of any such notice, it cannot be predicated on the facts here that the plaintiff had become incapable of performing his part of the contract or had violated any essential term of the contract. There is also no plea or proof of his having acted in fraud of the contract or having varied the terms of the contract. The delay in the performance of the contract, whether it is attributable to the collusion between the first defendant and the maternal uncle of defendants 3 and 4 as alleged by the plaintiff or not, was not due to any default on the part of the plaintiff. There was a restraint order against the execution of the sale deed in his favour, and soon after it was discharged, the plaintiff has come forward with the suit. At this stage, it is not necessary to examine whether there was any collusion between the first defendant and the maternal uncle of defendants 3 and 4. Even independent of any such collusion, the plaintiff''s conduct cannot be said to be in violation of Cl.(b) of S.16. The other circumstances of Cl.(b) had not been made out.

The only aspect that remains to be examined is regarding the readiness and willingness on the part of the plaintiff. Cl.(c) of S.16requires an averment and proof that the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract, which were to be performed by him. In this connection reference has to be made first to the pleadings to see whether there are averments. In paragraph 21 of the plaint it is stated as follows:-

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[After discussing the averments in the plaint and written statement, and evidence relating to this issue, the learned Judge proceeded as follows :--Ed.] The question has to be approached from two angles. One is whether even assuming that the plaintiff did not command immediately a sum of Rs. 42,500 or Rs. 37,500 the relief of specific performance is not available to him, and the other is whether in the present case there was any want of any readiness and willingness on the part of the plaintiff to honour his part of the contract as required by S.16 (c)of the Specific Relief Act.

On the question of means it is enough to refer to a decision of the Privy Council in Bank of India Limited and others v. Jamsetiji A.H. Chinoy and Messrs Chinoy and Company ILR 1950 Bom. 606. There was a contract entered into by the plaintiffs whom we may call the Chinoys with the Dinshaws for the purchase from the Dinshaws of certain shares in a company known as F.E. Dinshaw Ltd., on 8th July, 1942, through an agent by name, Shapoorji Pallonji Mistry. As the shares were not transferred in accordance with the agreement, Chinoys filed a suit in the Bombay High Court for specific performance of the contract. The trial Court dismissed the suit on the ground that Shapoorji Pallonji Mistry who had acted for the Dinshaws, had no authority to enter into the relevant contract. When the matter was taken up on appeal before a Division Bench consisting of Chagla, Ag.C.J. and Bhagwathi, J, (as he then was) one of the contentions was that the Chinoys were not at any time ready and willing to perform their obligation under the contract and were not, therefore, entitled to relief by way of specific performance. The appellate Court overruled this objection, and there was an appeal to the Privy Council. Various contentions, were urged before the Privy Council. But, one of the contentions, which is the one material for our present purpose, related to the question whether the Chinoys were entitled to specific performance, because A.H. Chinoy, one of the Chinoys had stated that he was buying for himself, that he had not sufficient ready money to meet the price, and that no definite arrangement had been made for finding it at the time of repudiation by the Dinshaws. At page 621 Lord Mac Dermott speaking for the Privy Council observed as follows:--

But, in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact, and in the present case the Appellate Court had ample material on which to found the view it reached. Their Lord ships would only add to this that they fully concur with Chagla, Ag.C.J. when he says :--

In my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that the first plaintiff was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England--would have "come to the conclusion that a man in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants Nos. 1 and 2.

This decision of the Privy Council was followed by a Division Bench of this Court in Eswari Amma and another v. M.K. Korah and others 1972 1 M.L.J. 218=85 L.W. 239. As pointed out by the Supreme Court in Nathulal v. Phoolchand AIR 1970 S.C. 546 in order to grove his readiness and willingness, the purchaser need not necessarily produce the money or vouch a concluded scheme for financing the transaction.

In the written statements of the defendants other than the first defendant, it is pleaded that in spite of the allegation that the plaintiff is a man of no means, he had not deposited the balance of Rs. 37,500. The deposit would be wholly unnecessary in view of the decision cited above.

The plaintiff has given a notice as early as 20th April, 1964, marked as Ex. B2 in reply to the first defendant''s notice, dt. 14th April, 1964. It was stated on behalf of the plaintiff as follows :--

My client is prepared to pay the full price as per the agreement and take a sate and it is the duty of your client to get the injunction order dissolved by taking appropriate steps in court and execute a conveyance in my client''s favour and deliver possession. If he does not do so my client will institute a suit for specific performance and hold your client responsible for all costs and damages.

It must be remembered that this notice was given at the time when the period of two months had not elapsed. The bona fides of the plaintiff are brought out eloquently in in this notice. The mere allegation that the plaintiff was a man of no means has no merit.

It is unnecessary for our present purpose, to go into the purchase of properties by the plaintiff or by his concubine subsequent to the agreement. There is enough evidence to show that apart from owning more than 10 areas of land, he was himself cultivating Krishnswamy Mudaliar''s lands to a decent extent. There is nothing to show that the plaintiff was in any involved circumstances, so that he would not have been in a position to command the necessary resources for fulfilling the terms of the contract.

Mr. Kesava Iyengar''s contention is that a capacity to manipulate (

) as stated by P.W. 7 in his evidence was not enough proof that he was in a position to perform his part of the contract. In the light of the law discussed above, we do not consider that it was necessary for the plaintiff to produce the hard cash for the purpose of establishing that he was in a position to command the necessary finance. As provided in the Explanation to S. 16 (c) of the Specific Relief Act, 1963, it is not essential far the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court. In the present case as the direction was given under the decree now under appeal, the plaintiff deposited the said sum of Rs. 37,000. Therefore, there can be no question of the plaintiff not having the necessary means to honour his part of the obligation under the contract.

The second part of the contention regarding the readiness and willingness may now be gone into. It was in this connection that Mr. Kesava Iyengar relied on the decision of the Privy Council in Ardeshit M. Mama v. Flora Sassoon. That was a case where a property in the city of Bombay was the subject matter of a suit specific performance. The defence was that there was never any concluded contract for the sale of the property, and that, even if there had been such a contract, it had been entered into on behalf of the defendant by an agent with no authority to bind her to its terms. The Privy Council found, after elaborately examining the evidence, that the agent, who entered into a contract had no authority to do so. The result was that the so-called agreement for sale of the property was not binding on the owner thereof. Their Lordships, however, went into the question of rules of practice in suits for specific performance. At page 526 it was stated that the right of the plaintiff in a suit for specific performance would be dependent upon his having been himself, up to the date of decree, ready and willing to perform the contract on his part. The suggestion is that there must be a continuous readiness and willingness right from the date of the agreement upto the date of the hearing. At page 539 there is the following passage laying down the rule applicable to such cases: --

Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered.

In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the "contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit".

This principle has been examined in later cases by the Supreme Court in International Contractors Ltd. v. Prasanta Kumar Sur 1961-3-S.C.R. 579. There was a purchaser of a property with an agreement thereafter for its reconveyance within a period of two years for almost the same value to the vendor. Before the expiry of the stipulated period the vendor entered into correspondence with the purchaser asking for the completion of the agreement for reconveyance and intimating that he was ready with the purchase money. The purchaser totally repudiated the contract for reconveyance. The vendor, therefore, did not tender the price, but filed a suit for specific performance, which was dismissed by the trial Court on the ground that the vendor has not paid the price for repurchase. The High Court decreed the suit for specific performance, and the Supreme Court pointed out that in a case of total repudiation of the agreement for sale it was useless to make a formal tender of the purchase money. At page 582 it was observed as follows :--

But, it was argued on behalf of the appellant that the respondent (original vendor) did not tender the price, i.e., Rs. 10,001/- nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent, but whether the appellant definitely, and unequivocally, refused to carry out his part of the contract and intimated "that money will be refused if tendered".

It may be that in certain circumstances as in Gomathinayagam Pillai and others v. Palaniswami Nadar 1967-1-S.C.R. 227, it may have to be found that the purchaser was not ready and willing to perform his part of the contract and that, he would not be entitled to the relief of specific performance. In that particular case the Supreme Court found that the trial court had recorded a clear finding against the purchaser that he was at no time ready and willing to perform his part of the contract and that the High Court had not considered the effect of that finding upon the claim of the respondent purchaser and without expressing its dissent of that finding the High Court granted a decree for specific performance to the purchaser. This conclusion was criticised. But, we do not find any circumstance which factually existed in the present case, and which would require the acceptance of the submission that the plaintiff was not ready and willing to perform his part of the contract.

In R.C. Chandiok and another v. Chuni Lal Sabharwal and others 1971-2-S.C.R. 573, the Supreme Court dealt with a case where there was an agreement for sale of a property in New Delhi for a sum of Rs. 22,500 & Rs. 7,500 was paid as advance and the balance was payable within one month on the execution of the sale deed. The plot had been allotted to the vendor by the Rehabilitation Ministry. There was no document in favour of the vendor at the material time and the vendor had to apply for and obtain the necessary documents so as to enable him to transfer the property in favour of the purchaser. In the action for specific performance it was held that as long as the title of the vendor was incomplete and sanction for sale was not obtained, there was no question of completing the sale and that the purchaser was entitled to specific performance after the sanction was granted. In the course of the judgment the question of readiness and willingness relevant in this type of cases was examined, and at page 580 it was observed as follows :--

Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.

Reference was made to the fact that the purchaser was in a position to "arrange" for the balance of the purchase money, and that was enough. The position in the present case is the same.

The effect of the provisions of the Specific Relief Act has been elaborately considered by the Supreme Court in N.L. Devender Singh and others v. Syed Khaja (1974) 1 S.C.R. 312. S.10 of the Specific Relief Act, 1963, contains an Explanation under which, unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer any immovable property cannot be adequately relieved by compensation in money. In dealing with this presumption, it was held in the above mentioned case that the effect of the presumption was that the party coming to the court for Specific performance of a contract for sale of immovable property need not prove anything until the other side had removed the presumption, and after the evidence was let to remove the presumption, the plaintiff might still be in a position to prove, by other evidence in the case, that payment of money did not compensate him adequately. Thus, grant of the prayer for specific performance of a contract to sell immovable property is the rule and grant Of damages in terms of money is only an exception. The right under the statute cannot be defeated by extraneous considerations. In our opinion, on the facts of the present case, the plaintiff was rightly held entitled to specific performance.

We have in discussing the question of readiness gone into both the aspects of the said point, viz., the absence of resources of the failure to tender the money at any earlier point of time than under the decree. The learned counsel for the plaintiff contended that there was no issue on the question of readiness in the manner in which it was argued before us. The argument, which was objected to, was that the plaintiff had not averred and proved properly the readiness and willingness to perform his part of the contract. We have already extracted the relevant paragraph of the plaint in regard to the readiness and willingness of the plaintiff to perform his part of the contract. The traversing of this allegation was by alleging that the plaintiff did not have the necessary means. The issue as framed related to the question of means and the issue was considered by the Court below as having comprehended the readiness and willingness in all its aspects. In paragraph 64 of his judgment the learned Judge has gone into the question of readiness and willingness on the part of the plaintiff to perform his part of the contract. He has found that the plaintiff was ready and willing and that it was the first defendant, who was not so ready and willing to perform his part of the contract. The relevant evidence had been recorded and the issue was gone into in all its aspects. We do not consider that the objection that the issue did not comprehend the readiness and willingness in all its aspects and that it was confined only to the question of means has no merits. We do not think it necessary to go into the decision cited before us on the question whether the issue 6 could comprehend in all its aspects or whether in the absence of an issue, the Court could go into the question and pronounce on it. When the parties have proceeded to the trial comprehending that the issue embraced all its aspects, we do not think that any technical objection raised at this stage, based on the inelegant manner the issue had been framed deserves acceptance. There was no suggestion that because the issue was framed in such a manner as the one before us, the plaintiff was in any way prejudiced and did not put forward any evidence available to him because of any misapprehension of the scope of the issue. In these circumstances, even this technical plea urged on behalf of the plaintiff is not entitled to succeed.

Certain cases bearing on the question whether a stipulation in an agreement to convey as regards damages would disentitle the parties to the agreement from enforcing it specifically (sic) were cited. The cases that have arisen on this aspect are all cases where there is a provision for damages payable by other party in the event of a failure to perform the agreement. In the present case Ex.A2 provides that a sale deed was to be executed on 19th May, 1964, on payment of the balance of the purchase price in the manner indicated in the agreement and that possession of the property was to be delivered to the plaintiff by the first defendant, if the plaintiff did not make the payment of Rs. 27,500 after the deposit of Rs. 10,000 in the name of the first defendant for the purpose of securing the maintenance for the second defendant, then the plaintiff was to forfeit the advance of Rs. 5,000 paid by him and the agreement for sale would become invalid. In the event of the first defendant failing to execute the sale deed, the plaintiff could keep with him the sum of Rs. 10,000 in order to settle the claim of the second defendant for maintenance and deposit the balance of Rs. 27,500 in Court. On such deposit, the sale deed could be executed through Court in this case no damages had been provided in favour of the plaintiff on account of the default on the part of the first defendant.

In Prakash Chandra v. Angalal and others AIR 1970 S.C. 1241 there was an agreement for sale in which there was a stipulation for damages. It Was held that this stipulation had been made only for purpose of securing the performance of the contract and not for the purpose of giving an option to the vendor of paying the money in lieu of specific performance and that even if a sum had been named in the contract for sale as the amount to be paid in case of a breach, the purchaser was entitled to the specific performance of the agreement. At page 1244 it was observed as follows:--

The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.

In the present case, there is no provision for damages which would accrue in favour of the plaintiff and in any event, the first defendant cannot get out of his obligation to execute a sale deed in favour of the plaintiff by relying on the extraneous consideration. There is no equitable consideration which would justify refusal of specific performance.

Mr. Kesava Iyengar submitted that the cumulative effect of the facts should be considered and the Court below had merely examined the individual circumstances and pointed out that with reference to each circumstance, there was an explanation operating in favour of the plaintiff. He has cited certain decisions to show that the totality of the circumstances should be looked into and the cumulative effect of the fact should be considered. As the point as such is not in dispute, we do not think it necessary to enter into a discussion of the cases cited in this behalf. It is enough for our purpose to state that as far as this case is concerned taking the facts even cumulatively, we are satisfied that the Court below was justified in holding that the plaintiff was all along ready and willing to perform his part of the contract. We have also shown that even in April, 1964, he sent a lawyer''s no ice expressing, his readiness and willingness and soon after the decree, he made a deposit within the time allowed under the law. Thus, the readiness and willingness of the plaintiff cannot be open to doubt on the facts herein. He was thus rightly held entitled to the relief of specific performance.

Defendants 2, 3 and 4 were represented by separate counsel. As far as the second defendant was concerned Mr. E. Padmanabhan, who appeared for her, submitted that she had a decree for maintenance in her favour in O.S. No. 664 of 1953 on the file of the District Munsif''s Court, Gobi, and, that it was subsequently enhanced in O.S. No. 500 of 1966 by the same Court to Rs. 213 per month from Rs. 37 per month. According to him, he was entitled to a charge over the properties. The decree for enhanced, maintenance is exhibited as the certified copy or the decree, which is marked as Ex.B129. The said suit was filed by the second defendant against the first defendant. The plaintiff had not been impleaded as a party to the suit. The second defendant had been impleaded as a defendant even originally in O.S. No. 166 of 1966, which is now under appeal. Even prior to the suit the plaintiff had an agreement on 16th March, 1964, in his favour with reference to the properties belonging to the first defendant, which was the subject matter of a charge under the earlier decree. Still the plaintiff was not impleaded in the said suit. The suit was filed on 6th April, 1966. The first defendant, who was the only defendant in the said suit remained absent and set ex parte and the suit was decreed on 9th August, 1966. The learned counsel for the plaintiff, therefore, contended that the plaintiff cannot be made liable for the enhanced amount of maintenance. Both Mr. Kesava Iyengar as well as Mr. Padmanabhan contended that under the law the second defendant was entitled to claim enhanced maintenance in accordance with the changed conditions and that the creation of the charge on the suit properties with reference to this amount would be effective not withstanding the existence of an agreement, if any between the plaintiff and the first defendant. This suit for enhanced maintenance is only one of a series, as seen already that came to be filed after the agreement, dt. 16th March, 1964 was entered into. On 31st March, 1964, the two daughters through their next friend, their maternal uncle, as seen already, filed a suit for maintenance and provision for their marriages and obtained an interim injunction against the enforcement of the agreement, Ex.A2 in I. A. No. 408 of 1964. To this suit the plaintiff was a party. The suit was decreed on 24th February, 1966. He was directed to pay the costs and he, therefore, filed an appeal, which came before a Division Bench of this Court in A.S. No. 567 of 1966 This appeal was dismissed on 19th February, 1973.

The next suit was O.S. No. 78 of 1964 by the fifth defendant through the sixth defendant as his next friend. This suit was for partition of the properties belonging to the first defendant. This suit was decreed on 30th September, 1967, and A.S. No. 544 of 1968 was filed. That was an appeal by the plaintiff. This appeal came to be disposed of by another Division Bench on 28th April, 1975. It was filed that the sixth defendant was not the lawfully wedded wife and that the fifth defendant hot have any right for partition.

Therefor on 6th April, 1966, the suit, O.S. No. 500 of 1966 was filed and was decreed, as already stated, on 9th August, 1966, with the first defendant remaining ex parte. The relevant proceedings before the Courts between the defendants and the plaintiff should have shown that the plaintiff had an agreement in his favour at time when the suit (O.S. No. 560 of 1966) was filed on 6th April, 1966. But curiously enough the plaintiff was not impleaded and in the evidence of Kali Ammal as D.W.4 she has not stated that she was unaware of the agreement in favour of the plaintiff.

During the course of her evidence she stated that she filed an execution petition about 13 years prior to her deposition in July, 1976. The period of 13 years would take us to 1963. Ex. B131 is the certified copy of petition and orders in E.P. No. 154 of 1964 in O.S. No. 664 of 1953. There was an execution petition for realisation of the maintenance till 20th October, 1965. Ex. A69 is is the certified copy of the petition and order in E.P.R. No. 154 of 1966, while Ex. B131 is dt. 12th October, 1965. Ex.A69 is dt. 19th January, 1966. From Ex.A69 it is found that a sum of 1,443 was realised by execution in August, 1966. Thereafter there is no evidence to show that there was any further execution of the maintenance decree. It is rather curious to find that a person who fought for the realisation of the maintenance of Rs. 37 p.m. even by seeking arrest of the first defendant and by sale of the properties did not take any execution of the decree in O.S. No. 500 of 1966. It is not necessary for our present purpose to adjudicate on the plea of collusion put forward by the plaintiff in the matter of obtaining of the decree in the said suit for enhanced maintenance. So long as the plaintiff was not impleaded as a party in the said suit the claim cannot succeed as against him.

S.28of the Hindu Adoptions and Maintenance Act 78 of 1956 provides that where a dependant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred the right to receive the maintenance may be enforced against the transferee, if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right. As far as the decree for maintenance in O.S. No. 664 of 1953 is concerned there is no dispute that the plaintiff is aware of the charge created thereunder. It is only in this connection that he wanted a sum of Rs. 10,000 to be kept in deposit so that the income therefrom would be available for meeting the claim at the rate of Rs. 37 per month. The total amount due per annum would be Rs. 444 and even in 1964 if the amount had been properly deposited in a bank, it would have yielded the requisite amount to pay the maintenance and after the lifetime of the second defendant, the amount under deposit would have been available to the first defendant or his heirs. In the event of any default on the part of the first defendant in executing the document, the provision was that there must be some arrangement or settlement made by the plaintiff so as to secure the maintenance for the second defendant. The learned counsel for the plaintiff stated that the said amount would have been made over to the first defendant in the event of the maintenance claim lapsing with the life of the second defendant. Mr. Kesava Iyengar would appear to contend that as to what should happen to the said sum of Rs. 10,000 which was left in the hands of the plaintiff, in the event of the first defendant''s default had not been provided for and that the plaintiff could easily walk away with it. The learned counsel for the plaintiff clearly stated that there was no intention to walk away with said sum, that it would be a part of the price for the property and that the first defendant or his heirs would always have on unpaid vendor''s lien on the property in case there was any conduct inconsistent with the payment of the said sum of Rs. 10,000. We consider that the statement made on behalf of the plaintiff correctly represents the intention of the parties and that the only safeguard which the plaintiff wanted was to see that the sum of Rs. 10,000 was not taken away by this first defendant and that the second defendant was left to proceed against the properties purchased on the basis of the charge.

The whole idea of the parties was to see that the plaintiff got title to the property without any encumbrance thereon. There is nothing wrong or contrary to law in the plaintiff expecting a transfer in his favour of an unencumbered property. Cl. (g) of S.55 (1) of the T.P. Act provides that the seller is bound to discharge all encumbrances on the property then existing except when the property is sold subject to encumbrance. In the present case the sale is free of encumbrance and, therefore, there is a statutory obligation on the first defendant to discharge the encumbrance on the property then existing. The encumbrance then existing on the property would be with reference to the sum of Rs. 37 payable to the second defendant charged on the property. The contention urged on behalf of the first defendant that the plaintiff was acting in an unreasonable manner in requiring a sale of the property free of encumbrance cannot be accepted in view of the provisions of the T.P. Act.

S.39 of the Transfer of Property Act provides:

Where a third person has a right to receive maintenance... from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous, but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

The provision is a counterpart to S.28of the Hindu Adoptions and Maintenance Act, which has already been referred to. The two provisions--one of the Hindu Adoptions and Maintenance Act, and the other, of the transfer of Property Act--have been held to be complementary in Ramaswamy Gounder and another v. Baghvammal and others ILR 1966 Madras 164 = 80 L.W. 12. Thus, so long as the transferee bad no notice of any increased maintenance when he entered into the agreement, he would not be bound either under the provisions of the Transfer of Property Act or under the provisions of the Hindu Adoptions and Maintenance Act, to pay the same. His liability got crystallised as on the date of the agreement.

Reference was made to a decision in Vedavathi Williams v. Bama Bai and others AIR 1964 Mysore 265. In that case a charge had been created on a property in favour of a member of a Hindu undivided family. That property was purchased by a stranger from the coparcener of a Hindu Undivided Family. In a sale deed, dt. 11th June, 1945, executed by the settlee of the property, for a sum of Rs. 8,000 a sum of Rs. 2,000 was left with the vendee for creating a fund for meeting the maintenance obligation. That purchaser sold the property to another third party. There was a subsequent suit by the maintenance holder for enhancement of the maintenance. The maintenance was increased and a charge was created on the property which had been sold. The purchaser took two contentions. The first was that he was a bona fide transferee for consideration without any notice of any intention on the part of anyone to defeat the claim of the maintenance holder for recovery of enhanced maintenance and that the property purchased could not be made liable for the payment of any enhanced maintenance. His other submission was that the enhancement of the maintenance was on the facts of that case excessive. After referring to S.39 of the Transfer of Property Act, it was held that the right to maintenance included the right to the enhanced maintenance if there was a material change of circumstances. It was also held in effect, that the charge for the enhanced maintenance would avail against any purchaser.

In the decision of the Mysore High Court there is reference to a decision of this Court in Puppala Ramamurthi v. Kandulapati Kanakarathnam and six others ILR 1948 Mad. 335=60 L.W. 586. In that case there was a suit by the widow of the deceased coparcener for enhanced maintenance. The third defendant in the suit was the purchaser of some of the properties. The sale was at the time when the first defendant in the suit was a minor. The first defendant adopted and ratified the sale, after attaining majority. A mortgage deed was later executed by the first defendant in favour of the third defendant. The widow claimed a charge against the said properties and the question was whether the alienee was bound by the claim for enhanced maintenance. At page 344 Govindarajachari, J., observed as follows :--

It seems to be equally beyond dispute that the claim of the widow of a deceased coparcener to be maintained out of the family estate is not charged on such estate till, by agreement of parties or decree of Court, a charge is created on a specified portion of such estate and if, before it is so created, any portion of the family estate is sold or mortgaged for the discharge of debts which have precedence over the widow''s claim for maintenance, she cannot enforce her claim against "the properties which are sold and can only enforce her claim against the properties which are mortgaged subject to such mortgage".

At page 346 the learned Judge added:

The rule of Hindu Law that though a Hindu widow has a right to be maintained out of the family estate, she has no charge in respect of such right over any portion of the estate till one is created by agreement, or by a decree of Court or by getting a part of the immovable property assigned to her for her maintenance, is not, in our opinion, intended to be affected by the amendment of S.39, so that any alienation made for purposes which would have precedence over the widow''s claim for maintenance would, in the absence of any charge created as indicated above, bind the widow and her right to have her maintenance charged upon an appropriate portion of the family estate can be enforced only subject to such alienation. The amendment of S.39is intended to deal only with transfers which do not come under the Hindu law rule, just referred to,--in other words, with transfers which are not for purposes which would take precedence over a widow''s claim to maintenance. Such transfers may ''be either gratuitous or for consideration. Under S.39as it stood before the amendment, a Hindu widow having a right to receive maintenance could enforce such right against the transferee, if the transfer was made with the intention to defeat her right with the added requirement that, if the transfer was for consideration, the transferee should have had notice of such intention. The only effect of the amendment of S.39is to make it unnecessary for the widow to prove that the transfer was made with the intention of defeating her right. If the transfer is gratuitous, there is nothing for her to prove beyond her right to receive maintenance. If, on the other hand, the transfer is for consideration, she has only to prove, besides her right to receive maintenance, that the transferee had notice of her right. In this view, therefore, the plaintiff''s claim to maintenance is enforceable subject only to the mortgage created by Ex. D11.

This decision is binding on us and we are also in respectful agreement with it. It would follow that the second defendant in the present case has to prove that the plaintiff had notice of her claim for enhanced maintenance. There has been no attempt at any such proof, and we are, therefore, unable to hold that the plaintiff is bound by any charge created on the property sold. In these circumstances it has to be held that the plaintiff is bound only to see to the securing of the maintenance decreed in O.S. No. 664 of 1953.

Another contention of Mr. Padmanabhan was that a charge over the property was available under law and that the plaintiff cannot by any agreement with the first defendant defeat this statutory or legal right available to the second defendant. So long as a proper provision is made for the maintenance-holder, she cannot have any legitimate grievance over the alienation. The amount payable as consideration for the sale is always available for being proceeded against. Her rights can be secured even in the present proceedings by making the deposit as contemplated by the parties under Ex.A-2.

On behalf of defendants 3 and 4 the contention was that they were not bound by the agreement. We are unable to see what benefit is sought to be obtained by this attitude displayed on behalf of defendants 3 and 4. The way in which they attacked the agreement and continued to do so now lends support to the plea of the plaintiff that all of them are joining together and putting themselves up against the plaintiff so as to defeat his rights under Ex.A2 thereby showing that their differences are a mere faced. The learned counsel for the plaintiff conceded that the plaintiff had been impleaded in the suit filed by them for maintenance and provisions for their marriages and that the amount decreed in their favour would have to be paid. Even after making the provision of Rs. 10,000 for the maintenance of the second defendant, there is a balance of Rs. 27,500, which is more than enough to meet the decree in favour of defendants 3 and 4 in a sum of Rs. 14,000 and maintenance. Therefore, any attack on their part against Ex.A2 cannot be taken to be bona fide and appears to be motivated.

We may now turn to the appeal filed by the plaintiff against the decree of the Court below. In the said appeal the contention urged is that the charge for the maintenance created even under the decree in O.S. No. 664 of 1953 has come to an end, as the defendants 1 and 2 have started cohabiting with each other subsequent to the said decree. The learned counsel for the first defendant submitted that they are living separately and that they have not cohabited.

In Vasantam Venkayya v. Vasantam Raghavamma AIR 1942 Mad. 1 a Bench of this Court held that a decree obtained by a Hindu wife against her husband for maintenance differed in no important respect from an order for permanent alimony embodied in a decree for judicial separation and that therefore, when the wife, subsequent to the decree, resumed cohabitation with her husband, this English principle could be applied, viz., that the decree became ineffective and could not be enforced. If she was compelled to leave him after resuming cohabitation she should apply for a fresh decree. Thus, in the light of this decision the question for consideration is whether the second defendant had started living with the first defendant so as to destroy her right to separate maintenance.

XX XX XX XX

[The discussion of the evidence is omitted-Ed]

On the evidence, we are not satisfied that the first defendant and the second defendant had started living together so that the decree for maintenance cannot be effective.

The next ground of attack on the decree passed by the Court below was that the Court below should have held that the decree for enhanced maintenance had been obtained in collusion. We have already gone into this aspect and we have not found it necessary to go into this charge. It is enough for our present purpose to hold that the enhanced maintenance and the charge created therefor would not be binding on the plaintiff.

The only other aspect adverted to by the plaintiff was that in Cl.4 of the decree it has been provided as follows:-

That the first defendant be entitled to withdraw the balance of sale consideration of Rs. 37,500 that will be deposited by the plaintiff.

This clause, according to the learned counsel for the plaintiff, goes against the tenor of Ex.A2 and would squarely place the maintenance claim on the shoulders of the plaintiff contrary to the terms of Ex.A2. If the first defendant is allowed to withdraw the sum of Rs. 37,500 without the imposition of any condition for securing the maintenance of the second defendant, then it would have the result of the charge on the suit properties being continued and the plaintiff having to meet the obligation created under the decree. We consider that this contention urged on behalf of the plaintiff is well-founded. Having regard to his past conduct, there is nothing unreasonable in the apprehension that he might not pay the maintenance claim thereby driving the second defendant to proceed against the suit properties. We, therefore, consider it necessary to make provisions in the decree for the deposit of the sum of Rs. 10,000 on a long term basis in a nationalised bank, so that the income therefrom would be available to the second defendant to the extent of the amount decreed in her favour in the original decree in O.S. No. 664 of 1953. Any further amount due to her under the enhanced maintenance allowance granted under the decree in O.S. No. 500 of 1966 would have to be realised from the first defendant from the balance of the interest available, and from the rest of the amount which would be in his hands out of the sale proceeds. The most equitable course would, prima facie, appear to be to direct the deposit of the entire amount of sale proceeds, after deduction of the amount due to defendants 3 and 4, in a nationalised bank on a long term basis, so that the income therefrom could be utilised in discharging the maintenance obligation and the balance would be available for the first defendant. We do not think it necessary to give any such direction at this stage as the second defendant did not ask for it. She may, however, make the necessary application in the Court below, which we are sure, would take into account all aspects and give appropriate directions.

One further point that is adverted to by the learned counsel appearing for the plaintiff was that he had made a deposit of a sum of Rs. 1,000 and odd in the execution proceedings in relation to O.S. No. 664 of 1953 and that this amount should be taken into account with reference to the sum of Rs. 37,500. In other words, the prayer was that to the extent of the said sum deposited into the execution proceedings the plaintiff would be entitled to refund. This point had been raised in the plaint, but unfortunately that has not been taken up in the grounds of appeal. In these circumstances we do not think it necessary or proper to give any direction in this aspect. In making the above observation, we should not be understood as standing in the way of the plaintiff taking any other steps to recover the said sum. The result is that the appeal filed by the first defendant (A.S. No. 647 of 1976) is dismissed with costs and the appeal filed by the plaintiff (A.S. No. 1025 of 1980) is partly allowed with proportionate costs. C.M.P. No. 12798 of 1980 is allowed, and C.M.P. No. 7257 of 1980 is dismissed. There will be no order as to costs in both C.M.Ps. Time for execution of sale deed is two months from this date, failing which the Court would do so.