Subbammal vs Masanamuthu Thevar and others

The plaintiff who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal. For

convenience, the parties to this Appeal will be referred as arrayed before.

At the time of admission, the following substantial question of law was framed by this Court:-

Whether the finding of the lower appellate court that Ex.A.1, the agreement of sale, is not a concluded contract is correct in the absence of any

pleading and evidence to that effect and also in view of the fact that the executants of Ex.A.1 themselves had admitted the execution of the same?

The plaintiff instituted the suit O.S.No.38 of 1981 on the file of the Additional Sub Court, Tuticorin for specific performance of an agreement

entered between the plaintiff and the defendants 1 and 2 under Ex.A.1 dated 3.2.1981, whereby the defendants 1 and 2 have agreed to sell the

suit property for a sale consideration of Rs.11,000. According to the plaintiff the defendants 1 and 2 have also received Rs.3500 on 3.2.1981,

executed Ex.A.1 sale agreement, besides handed over Ex.A.3 and Ex.A.4 prior documents of title. The plaintiff further pleaded that she had also

paid a sum of Rs.2,000 towards part of the sale consideration on 8.2.1981. The plaintiff while pleading that she is always ready and willing to pay

the balance and complete the sale, purchased stamp papers and drafted the sale deed Ex.A.2 which was written on 16.2.1981, pleaded that when

she approached the defendants 1 and 2, to complete the sale, which they evaded. The plaintiff caused a notice Ex.A5 dated 17.2.1981, to which

the defendants 2 and 3 have sent a reply under Ex.A.7, dated 1.3.1981. The plaintiff came to know that the defendants 1 and 2 have sold the suit

property to the third defendant on 17.2.1981 under Ex. B.5. which is not bona fide sale and the third defendant had purchased the suit property

with notice of prior sale agreement between the plaintiff and the defendants 1 and 2. The third defendant is not a bona fide purchaser for value

without notice of the prior agreement. The plaintiff also protested when the third defendant attempted to cut the standing trees. The plaintiff had

filed the suit for specific performance.

The defendants 1 and 2 while admitting the sale agreement executed by them in favour of the plaintiff and admitting receipt of 3,500 as

advanced pleaded that they have not received Rs.2000, that the third defendant who was in enjoyment of the suit property as a cultivating tenant

could not be evicted from the properties, that the defendants 1 and 2 agreed to sell the property to the third defendant on 19.1.1981 for a

consideration of Rs.7,000 after receiving Rs.2000 that only thereafter the plaintiff had approached the defendants 1 and 2 by representing that he

will settle the claim of the third defendant/tenant who had purchased the property by offering fancy price and that believing the said representation,

the defendants 2 and 3 have executed the sale agreement.

It is further stated by the defendants 1 and 2 that the sale agreement has been cancelled and they have repaid the advance through one Mayandi

Thevar. It was further pleaded that the sale in favour of the third defendant is valid and that the plaintiff is not entitled to any relief.

The third defendant filed a separate written statement contending that he is not aware of the sale agreement, that he is a cultivating tenant of the

suit properties, that the defendants 1 and 2 have agreed to sell the suit properties on 19.1.1981 for Rs.7,000 and received an advance of Rs.2,000

from him, that pursuant to the sale, agreement, a sale deed has been executed on 17.1.1981 and that he is a bona fide purchaser for value. The

third defendant further pleaded that the plaintiff is not entitled to the relief of specific performance.

The plaintiff marked Exs. A-1 to A-9 and examined P.Ws.1 to 3 while the third defendant marked Exs. B1 to B5 and examined two witnesses.

The second defendant had been examined as D.W.2.

After detailed consideration, the trial court held that the sale agreement alleged between the plaintiff and the defendants 1 and 2 is true and the

sale agreement alleged to have been entered between the defendants 1 and 2 on the one side and the third defendant on the other side is neither

true nor could be believed, that the plaintiff had not established the payment of additional sum of Rs.2000 as it is not supported by a receipt, but

the plaintiff is ready and willing to pay the entire balance including Rs.2,000. The trial court also found that the sale in favour of the third defendant

is not a genuine transaction and it is a brought up transaction and that the third defendant is not a bona fide purchaser without notice. In the light of

the said findings the trial court granted a decree for specific performances on the plaintiff paying a sum of Rs.7,500 being the balance of the sale

consideration after adjustment of Rs.3,500 being the advance paid by the plaintiff to defendants 1 and 2.

Being aggrieved, the third defendant alone preferred A.S.No. 128 of 1984 and the defendants 1 and 2 have not preferred an appeal but they

have entered appearance through counsel before the first appellate court. The first appellate court held that the third defendant is a subsequent

purchaser with the notice of the prior agreement. The alleged sale agreement between the defendants 1 and 2 the third defendant is not true. The

witnesses examined by the defendants are interested witnesses, and that the sale agreement between the plaintiff and the defendants 1 and 2 is true.

But the first appellate court allowed the appeal on the sole reasoning that the suit agreement between the plaintiff and the defendants 1 and 2 is an

incomplete and inchoate instrument, is unenforceable even though defendants 1 and 2 have admitted the truth of the sale agreement Ex.A.1

executed by them in favour of the plaintiff in the written statement as well as in the witness box.

Mr. K. Srinivasan, the learned counsel for the appellant contended that the first appellate court ought not to have interfered with the judgment

of the trial court having found that the sale agreement in favour of the plaintiff is true and earlier in point of time, that the sale agreement between the

defendants 1 and 2 and the third defendant is not true, that the third defendant is not a bona fide purchaser and he had the notice of the prior

agreement and the first appellate court ought to have confirmed the judgment of the trial court.

Mr. K. Srinivasan also contended that none had putforth a plea of inchoate or incomplete agreement, much less, the third defendant and that

the defendants 1 and 2 have admitted the agreement Ex.A.1 executed by them in favour of the plaintiff, merely because the signature of the plaintiff

is not found in Ex.A.1, it cannot be said that Ex.A.1 is either incomplete or inchoate.

Per contra, Mr. T.M. Hariharan, the learned counsel for the third respondent contended that though the defendants 1 and 2 have signed the

sale agreement Ex.A.1 the plaintiff had not signed the sale agreement and having not signed in the sale agreement Ex.A.1, the plaintiff cannot seek

for specific performance of agreement to sell. In this respect the learned counsel for the third respondent placed reliance on the decision of this

court reported in Rajabu Fathima Buhari and Another Vs. S.V. Ramakrishna Mudaliar and Others, , Hardatt Sharma Vs. Jaikishen Shamlal and

Sons and Others, , Chironjilal and Others Vs. Khatoon Bi and Others, and Chandi Avira v. T. Varkey, AIR 1951 T.C. 109 in support of his

contentions. While Mr.K. Srinivasan the learned counsel appearing for the appellant relied upon the decision of P. Sathasivam, J reported in

Lakshmin Ammal (died) and 6 others v. J. Victor and 3 others, 1998 (3) L.W. 189 and paragraph 510 as well as 515 of the Text Book of the

Law on Specific performance by FRY (Sixth Edition).

It is to be pointed out that the defendants 1 and 2 though filed separate written statements before the trial court have allowed the findings of the

trial court to become final and they have not preferred any first appeal. It is only the third defendant who had preferred the appeal. Even in this

second appeal also the learned counsel for the defendants 1 and 2 had adopted the arguments of Mr. T.M. Hariharan, the learned counsel for the

third defendant.

The concurrent findings of the two courts below, as summarised hereunder has not been challenged by Mr.T.M. Hariharan in this second

appeal. The findings being:

(a) The sale agreement Ex.A. 1 executed by the defendants 1 and 2 in favour of the plaintiff is true and the plaintiff had advanced a sum of

Rs.3000 under Ex. A.1;

(b) The defendants 1 and 2 have admitted Ex.A.1 not only in the reply notice, but also in the written statement besides the second defendant as

D.W.1 had admitted the same;

(c) The alleged sale agreement putforth by the third defendant in his favour is fabricated and not a true transaction:

(d) The plaintiff has always been ready and willing to perform his part of the contract and complete the sale after paying the balance of the full

consideration agreed to in Ex.A.1 including the son of Rs.2,000 which he claims to have paid subsequently;

(e) The third defendant is not a bona fide purchaser without notice of prior sale agreement Ex.A.1;

(f) The third defendant was a cultivating tenant under defendants 1 and 2; and

(g) The third defendant had secured a sale deed with full knowledge of the prior agreement of sale with the object of defeating the plaintiff''s claim

for specific performance.

The above findings are concurrent findings and the findings are supported by evidence and in particular admissions not only in the pleadings,

but also in the witness box. It is to be noted that no cross objections had been filed with respect to the above findings recorded by the two courts

below.

As already pointed out, the first appellate court though concurred with the above findings of the trial court, allowed the appeal on the sole

ground that Ex.A.1 is a inchoate and incomplete document and the plaintiff cannot enforce the same.

A perusal of Ex.A.1 would show that the same has been signed by defendants 1 and 2. A mark of plaintiff had been made in the said

document apart from witness and the scribe who had also signed the said document. It should not be forgotten that the second defendant as

D.W.1, has admitted the sale agreement entered into between the plaintiff and the defendants 1 and 2 the execution of Ex.A.1 sale agreement as

well as the payment of the advance. The admission of D.W.1 is in consonance with the plea set out in the written statement. The plaintiff had also

examined three witnesses in support of her case that the defendants 1 and 2 have agreed to sell the suit property in her favour and they have

executed Ex.A.1, sale agreement besides they have handed over the prior documents of title viz., Exs.A-2 and A3. The execution of Ex.A.1 sale

deed had not been denied by the defendants 1 and 2 and the second defendant had also admitted the signature found in Ex.A.1.

Curiously, Mr.T.M. Hariharan, the learned counsel for the third defendant contends that the plaintiff is not entitled to the relief of specific

performances as her signature is not found in Ex.A.1, sale agreement, but just the plaintiff s mark had been made. In this respect, the learned

counsel for the third defendant placed reliance on the three decisions of this Court.

Per contra, Mr. K. Srinivasan, the learned counsel for the appellant contended that admittedly there is a concluded contract of sale between

the parties. There is no vagueness and Ex.A.1 is not an inchoate document and the findings of the first appellate court in this respect is contrary to

law and a misconception.

Before proceeding further, it is to be pointed out that except the contention that Ex.A.1 is an inchoate document and therefore unenforceable,

no other objection or contention has been raised by the counsel with respect to the plaintiffs claim of specific performance.

On a perusal of Ex.A.1, this Court finds that it is in complete form and it contains all the material stipulations of an agreement to sell and it is

complete in all respects. Ex.A.1 sale agreement is a concluded contract. It is found that unless a concluded contract is established the suit for

specific performance of contract would not lie. The onus to prove that the contract is a concluded contract is on the plaintiff. The essential

ingredients of an agreement to sell are:

Certainty as to price or consideration;

Certainty as to parties viz., the vendor and vendee;

Certainty as to property to be sold; and

Certainty as to other terms relating to the purchaser, the cost of conveyance, time and other mutually agreed clauses.

All the four essential ingredients find a place in the agreement and therefore the defendants 1 and 2 are obliged to convey the immovable

property and the plaintiff is entitled to seek for specific performance. The defendants 1 and 2 have admitted the sale agreement in defendant who

had been examined as D.W.1 admitted the sale agreement. Being a concluded contract as seen from Ex.A.1, and when the defendants 1 and 2

have acknowledged the payment of advance, the plaintiff is entitled to specific performance of the agreement on the facts of the case.

The four essential ingredients have been admitted by the defendants 1 and 2 and they have also admitted that the plaintiff is the purchaser who

had entered into an agreement of sale. Hence it is untenable to hold that Ex.A.1 is either inchoate or incomplete. Nor it can even be suggested that

the contract is contingent. No other vitiating circumstance has been pointed out by the contesting defendants. The sale agreement is also well

supported by consideration. The defendants 1 and 2 have admitted the payment of advance.

Section 54 of the Transfer of Property Act defines the contract of sale as hereunder:

A contract of sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does

not, by itself, create any interest in or charge of such property

Mr. T.M. Hariharan the learned counsel for the third respondent referred to the decision reported in S.M. Gopal Chetty v. Roman, AIR 1998

Mad. 169 and contended that Ex.A.1 agreement which does not contain a signature of the plaintiff is inchoate and unenforceable. The learned

counsel relied upon the above decision rendered by S.M. Abdul Wahab J., where the learned Judge on facts held that there is no agreement at all

and the plaintiff had not established the agreement or his executing it, with which he came to the court to enforce, which is not the case here. On

facts of the said case S.M. Abdul Wahab J., had held so. It has not been laid down without the signature of purchaser there could be no

enforceable agreement of sale.

Mr.T.M. Hariharan, the learned counsel for the third respondent also relied upon a decision of this Court reported in Rajabu Fathima Buhari

and Another Vs. S.V. Ramakrishna Mudaliar and Others, and pointed out that the Division Bench in that case has declined to enforce the

agreement of reconveyance as the same had not been signed by the parties to the agreement. The Division Bench on the facts of the said case held

that there was no ad idem between the parties on the question of reconveyance, that the terms relating to reconveyance were not certain, and that

the document was not signed by the parties to the agreement. In that context, it has been held that no binding agreement had been entered between

the parties. The Division Bench held thus:

The contention of the learned counsel for the appellants is that the learned Judge failed to consider the basic question whether Ex.P.1 was

enforceable at law. His contention is that there is no intention to create a legal obligation and therefore there is no enforceable contract. In this

connection, the learned counsel referred to Cheshire and Fifoot on the Law of Contract (Seventh Edition) pages 94 to 99. When parties enter into

an agreement, which is supported by consideration, the question whether in addition to the above requirements a third contractual element viz., the

intention of the parties to create a legal relationship is necessary. There is considerable support for the view that it is essential for the plaintiff. Who

wishes to establish the existence of a contract to prove that the creation of a legal relationship was intended. If no such intention can be established,

there can be no contract. If, on the other hand, such an intention can be established, the Court may proceed to consider whether there is a valid

offer and acceptance and whether there is consideration, such cases may fall either under a category ""social family or other domestic agreements

on the the one hand or ""commercial agreements"" on the other. In the case of ""social family or other domestic agreements"" the intention can be

inferred from the language used by the parties and the circumstances in which they use it. On the other hand, the intention is presumed in the case

of commercial agreements rebuttable by the parties seeking to deny it. We may give some examples falling under the first category (domestic

agreements). They are: Balfour, 1919 (2) K.B. 571, Simpkins v. Pays, 1955 (3) All ER 10 and Backpitt v. Oates, 1968 (1) All ER 1145. In the

case of commercial agreements where intention to create legal relationship is presumed, such presumption could be rebutted in the case of (1)

advertisements as illustrated by Carlill Carbolic Smoke Ball Co., 1893 (1) QB 256; (2) where they expressly declare that it is not to be binding in

law. The most remarkable instance of a clause expressly outlaying an agreement is to be found in Rose and Frank Co., Case. The other cases

which are illustrative of this aspect are the Football Pool Cases.

The words inserted in such an agreement to exclude legal relations may be ambiguous. In such cases the onus of proving intention to create a legal

obligation lies upon the party who asserts it. As an illustration to the above principle Edwards v. Skyways Ltd., 1964 (I) All ER 494 may be

usefully referred.

The transaction in the present case is a commercial agreement and therefore the question will be whether the presumption which exists to create

legal relations in making a contract has been rebutted. We are of opinion that the materials on record are sufficient to rebut the presumption and

they are as follows:- (1) No binding agreement is entered into between the first plaintiff and the second defendant or by the first plaintiff with the

first defendant, who is the principal contracting party under Exs.P.2 and P.3; (2) It has not been established that Kamal who executed Ex.P.1

represented either the first defendant or the second defendant; and (3) The language used in the document is not positive to create a legal liability.

What the second defendant has offered is only to see to the first defendant executing the reconveyance deed which is not the language where a

legal relationship is intended to be created and mutual obligations flow therefrom. In this connection we may refer to Chetty on Contracts, Volume

I, Paragraph 42 and 48.

The above is not the case herein and in the present case, the parties namely the plaintiff and the defendants 1 and 2 very much admitted the

agreement to sell. The consensus between them with respect to all the material ingredients of the agreement to sell is very much present in this case.

The contention of Mr.T.M. Hariharan, the learned counsel for the third respondent is solely on the basis that the signature of the plaintiff is not

found in Ex.A.1 and it is only the indication of the signing had been marked in the document and therefore the sale agreement is incomplete

according to him. It is not in dispute that Ex.A.1 in form is a concluded contract which is sought to be enforced. The Plaintiff had instituted the suit

to enforce Ex.A.1 and it is nothing but acceptance of the stipulations agreed to between the parties by the plaintiff in Ex.A.1.

In Kumaraswamy and others v. S.K. John (died) and others, 1993 (II) MLJ 144 a Division Bench of this Court had occasion to consider an

identical contention where the agreement was not signed by purchaser as in the present case and the contention raised was that there was no

mutuality between the parties to the contract. The Division Bench after analysing the case held thus:

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

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

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

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

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

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

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

not be granted. But the facts in that case are different. There the pronote which ultimately became time barred was executed in consideration of the

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

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

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

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

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

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

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

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

other. But, under sec.20(4) of the specific Relief Act the court shall not refuse to any party specific performance of the contract merely on the

ground that the contract is not enforceable at the instance of the other party in Nanak Builders and Investors v. Vinod Kumar Alag. AIR 1991 Del.

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

argued on behalf of the vendor that thereafter there was no security for him that he would receive the balance sale consideration lack of this

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

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

argument of the defendant does not appear to be sound. Apart from this Section 20, Sub Sec. (4) of the Specific Relief Act, specifically provides

that the court shall not refuse to any party specific performances of a contract merely on the ground that the contract is not enforceable at the

instance of the other party. This statutory provision takes care of such an argument as has been advanced on behalf of the appellant. So we do not

find any substance in the argument based on lack of mutuality in Ex.A.1 agreement advanced on behalf of the appellants.

P.Ws. 1 to 3 have deposed about the conclusion of agreement to sell and execution of Ex.A.1. D.W.1 had admitted the same. The admission

of D.W.1 is the best evidence and it is not only conclusive but also binding on all the defendants.

In the present case, the attestor and the scribe as well as P.W.1 have spoken about the execution where a marksman merely touches the pen

and does not put the mark himself, but his mark is put to the document by another person to whom the pen is handed over by the marksman after

being touched by him in token of his consent, which is a valid execution by the marksman. The execution consist in signing the document written

and read over and understood and does not consist of merely signing a blank paper.

In the present case as already pointed out, the conclusion of sale agreement between the plaintiff and defendants 1 and 2 is admitted by D.W.1

not only in the evidence box but also in the written statement. The defendants 1 and 2 are bound by the said admission. The plaintiff has established

that there has been a validly concluded agreement of sale and all the essential ingredients had been established. On the other hand, in the two cases

relied upon by the learned counsel for the third defendant, the very agreement have not been established. On the facts of the case the trial court

after detailed analysis held that Ex.A.1 agreement is valid and binding, while the Appellate Court had proceeded on the assumption that Ex.A.1 is

inchoate which is not correct. An agreement to sell could even be by a form of a letter of the vendor addressed to the purchaser setting out the

main ingredients and acknowledging the payment of advance paid by the purchaser. When the defendants 1 and 2 have admitted that Ex.A.1 to be

a true and valid document, it is not open to the third defendant to ''contend that the agreement is incomplete or inchoate and unenforceable. It is to

be pointed out that the third defendant had not put forward the plea of collusion or fraud in this respect either against the plaintiff or against the

defendants 1 and 2.

On the evidence, this Court holds that there is a validly concluded contract between the plaintiff and the defendants 1 and 2, which the plaintiff

is entitled to enforce. The plaintiff had by oral and documentary evidence proved the agreement to sell in her favour by defendants 1 and 2.

The learned counsel for the third defendant further contended that the admission of defendants 1 and 2 in the written statement as well as in the

witness box cannot be used against the third defendant. In this respect the learned counsel heavily relied upon the pronouncement reported in

Hardatt Sharma Vs. Jaikishen Shamlal and Sons and Others, and Chironjilal and Others Vs. Khatoon Bi and Others, and Chandi Avira v. T.

Varkey, AIR 1951 T.C. 109 and contended that the admission of defendants 1 and 2 cannot be relied upon as they have already parted their

interest in the suit property. The learned counsel for the third defendant contended that the admission could be made only during the continuance of

a persons interest. According to Mr. T.M. Hariharan once the first defendant had parted with his interest in the property, his admission has no

evidenciary value. On the facts of this case, such a contention cannot be appreciated.

It is to be pointed out that Section 31 of the Evidence Act provides dial admission is not conclusive proof of the matter admitted but they may

operate as estoppel. It is well accepted that admissions is the best evidence. Admission in the pleadings by a party in evidence conclusive. It is to

be pointed out that the defendants 1 and 2 or that matter D.W.1 had not admitted the title to the suit property but what they have admitted is the

execution of a sale agreement to sell and affixing of their signatures and the concluded contact as well as the stipulations therein. Even before the

filing of the suit and in the reply notice also the defendants 1 and 2 have admitted the concluded sale agreement. The decisions relied upon by the

learned counsel for the appellant, in my considered view will have no application to the facts of the case as the admission is not with respect to the

identity or interest which they have already conveyed in favour of the third defendant as they ceased to be the owner thereof. But the admission is

with respect to the conclusion of the sale agreement, which the defendants 1 and 2 being parties to the agreement Ex.A.1 have admitted. An

admission of a party to an attested document of its execution is sufficient to prove its execution as against the executant. The admission in the

present case relates to the person who actually executed the sale agreement and it is in the pleadings as well as in the evidence in the present case.

The admission of execution by defendants 1 and 2 is sufficient to prove against the said executant. In the circumstances, this Court holds on the

admission of defendants 1 and 2 Ex.A.1 could be very much be relied upon and the plaintiff is entitled to enforce the agreement.

The learned counsel for the third defendant contended that at any rate, the plaintiff even if he is entitled for specific performance he is not

entitled to actual possession as the third defendant is a cultivating tenant whose possession is protected by the provisions of the Tamil Nadu

Cultivating Tenants Protection Act. This Court is unable to sustain such a claim as there had been a merger of his right of tenancy on his getting a

transfer of conveyance of the suit land and the right of tenancy had not been persevered to be operative in spite of conveyance in his favour.

In this respect the learned counsel for the appellant rightly relied upon the decision of this court reported in Syed Ahamed v. Salima Bi and

others, 1989 (II) MLJ 372 wherein it has been held thus:-

In order, therefore, to give effect to merger, it is necessary that a lesser estate and the greater estate should merge in one person at one and the

same time and no interest in that property should remain outside. In this case of lease, the estate of the lessor Mohammed Zackria is a reversion

and that had come to be vested with the petitioner who was a lessee, and there was no other interest in the property which had remained outside.

Consequently, in the present case, there was a merger of the interest of the lessor and the lessee in the petitioner. The sale under Exhibit B.1 dated

30th December, 1964 by the 12th respondent in favour of the petitioner establishes beyond doubt that it was inconsistent with the continuance or

the subsistence of the lease. The possession of the properties by the petitioner after 30th December, 1964 is not referable to the lease of the

properties by Mohamed Zackria on 22nd February, 1962, but to the sale under Ex.B1 in favour of the petitioner and therefore, the lease in favour

of the petitioner did not either subsist on enure for the benefit of the petitioner thereafter. An analogous situation with reference to the

maintainability of an application for eviction under the provisions of the Tamil Nadu Cultivating Tenants Protection Act XXV of 1955 arose for

decision in Annamalai Goundarn v. Vatkataswami Naidu and others. In that case, after the expiry of the period of lease, an agreement was entered

into between the parties whereby the leased properties were agreed to be sold to the lessee. There was a tender of the balance of consideration

which was declined to be accepted by the landlord and a sale deed was also not executed. An application for eviction was made by the landlord

under the provisions of the Tamil Nadu Cultivating Tenants Protection Act and an objection was raised that the relationship of landlord and tenant

did not subsist and therefore the petitioner was not maintainable.....

In the present case, it is not even stated that the tenancy rights of the petitioner were in any manner preserved to be operative in spite of the sale in

his favour under Exhibit BB dated 30th December, 1964. Nor has the petitioner come forward with a case that after the invalidation of the sale in

his favour there was any agreement between respondents 1 to 10 and him to remain as a tenant of the properties in question. On the execution of

the sale under Exhibit BB, dated 30th December, 1964 by the 12th respondent, the petitioner secured title to the properties in question and

thereafter his possession of the properties can be attributed only to ownership of the properties and not as a mere lessee as before. Consequently,

the petitioner cannot set up tenancy rights in the properties as a shield to the application for restitution made by respondents 1 to 10. The result ,

therefore is that the orders of the courts below are perfectly correct and do not justify any interference. The Civil revision petition fails and is

dismissed with costs.

In fact in the earlier decision reported in C. Palanisami Chetti v. Muruganna Gounder, 1979 (I) MLJ 470 an identical question was raised and

it had been held thus:

In the present case, there is a sale in favour of the second defendant by the first defendant under Ex A.1 and the title of the first defendant passed

on to the second defendant as on the date of Exhibit A.1. Consequently, from the date of Ex.A.1, sale deed, the second defendant''s possession

ceased to be that of a tenant and the relationship of landlord and tenant, if, any, that existed on that date ceased to be in force. In the

circumstances, from the date of Ex. A. 1, the possession of the second defendant can be traced only to Ex.A.1 sale deed. I, therefore, hold that it

would not be open to the second defendant to fall back upon his possession as a tenant. Once I find that EX. A.1 is liable to be avoided by the

plaintiff on the foot of Ex.A.8, agreement for sale, the appeal filed by the second defendant as well as the appeal filed by the first defendant have to

necessarily fail.

Mr. K. Srinivasan relied upon the passage in the text book on Treaties of Specific Performance of Contracts by FRY (Sixth Edition). In the

said book at page 247 it has been held thus:-

510.....""As seen as the fact is established of the final mutual assent of the parties to certain terms, and those terms are evidenced by any writing

signed by the party to be charged or his agent lawfully authorised, there exist all the materials, which this Court requires, to make a legally binding

contract.

515....The statute requiring that the agreement, or the memorandum or note thereof, shall be signed by the party to be charged therewith, or his

agent, and not requiring that it shall be signed by both parties to the contract, it has been held, both in courts of Equity and also in Common Law

Courts, that a signature by the party against whom the contract is sought to be enforced is sufficient

The above passage applies on all fours to the present case.

In Lakshmi Ammal (died) and 6 others v J. Victor, 1998 (3) L.W. 189 P. Sathasivam, J. had occasion to consider an identical situation and

held that the vendor who has agreed to sell the property to the purchaser, the plaintiff in the suit, in the absence of any denial in the written

statement by the said executant, it is sufficient if the executant who had agreed to sell the property for a price has signed it for being enforced by

way of filing a suit for specific performance. The Learned Judge has granted a decree in respect of the agreement to sell signed by the vendor alone

and held that it is not necessary that it should be signed by both the parties to the agreement. Mr. K. Sreenivasan is well found in relying upon this

decision of P. Sathasivam, J.

The findings of the two courts below being that the third defendant with the full knowledge of the earlier Ex.A.1 had purchased the suit

property and he is not a bona fide purchaser without notice; such being the conduct of the third defendant and therefore it is legally impermissible

for the third defendant to contend that the defendants 1 and 2 cannot speak the truth with respect to their executing Ex.A.1 the earlier sale

agreement. Hence this Court holds that the two main contentions raised by the learned counsel for the third defendant fails and no interference is

called for in this appeal.

In the light of the findings that there has been a valid prior agreement of sale between the plaintiff and the defendants 1 and 2, that the third

defendant not being a bona fide purchaser without notice and the plaintiff having established that there had been a valid agreement to sell and

always been ready and willing to perform her part of the contract, the judgment of the first appellate court has to be set aside and the judgment of

the trial court has to be restored.

Accordingly the second appeal is allowed. The judgment and decree of the first appellate court is set aside and that of the trial court is

restored. No costs.