Vadivelu Mudaliar (died) and another vs Kanni Ammal (died) and 4 others

S.S. Subramani, J.—Plaintiff in O.S. No. 639 of 1980, on the file of Subordinate Judge, Cuddalore, is the appellant. Subsequent to the filing

of Second Appeal, the sole appellant died and his legal representative has been brought on record as additional 2nd appellant. The sole

respondent in the Second Appeal is the 1st defendant in the suit. She also died and her legal representatives have also been brought on record as

additional respondents 2 to 5. The plaint schedule property originally belonged to the sole respondent, the 1st defendant in the suit. She sold the

property to one Kannappa Mudaliar on 22.11.1967 for a consideration of Rs. 12,000/-. On 24.11.1967 Kannappa Mudaliar executed a

reconveyance deed agreeing to reconvey the property for Rs. 13,300/- within a period of six years. But Kannappa Mudaliar did not reconvey the

property as agreed, and therefore, the 1st defendant filed a suit as O.S. No. 481 of 1973, on the file of Subordinate Judge''s Court,. Cuddalore,

for specific performance of the reconveyance agreement. The suit was decreed on 25.7.1975. Pending suit, 1st defendant entered into another

agreement with the deceased plaintiff herein, as evidenced by Ex.A-1 dated 5.10.1974. The 1st defendant agreed to convey the plaint property for

a total consideration of Rs. 25,000/-, out of which a sum of Rs. 20,000/- was paid in cash as advance on the date of agreement. As per the

agreement, the balance Rs. 5000/- has to be paid at the time, when the sale deed is to be executed. In the agreement, it is also stated about the

pendency of litigation between the 1st defendant and Kannappa Mudaliar. It is stated therein, that the sale deed will be executed within a period of

two months after the decree '' is obtained. From out of Rs. 20,000/- received as advance, the amount payable under the reconveyance agreement

was deposited by the 1st defendant in Court. It is the case of the plaintiff that the 1st defendant has also received Rs. 5,000/-, the balance sale

consideration, but since subsequently the 1st defendant disputed the same, the plaintiff to prove his bona fides deposited that amount.

Against the decree in O.S. No. 481 of 1973, Kannappa Mudaliar filed an appeal as A.S. No. 796 of 1975, on the file of this Court. After filing

the appeal, Kannappa Mudaliar also obtained an order of stay of all further proceedings in the case. Kannappa Mudaliar died pending appeal, and

present defendants 2 to 5 were also impleaded in that case. The appeal was dismissed on 23.6.1980. Immediately thereafter, plaintiff issued a

notice asking the 1st defendant to execute a sale deed, as evidenced by Ex.A-1. Her contention was that the agreement is not in force, since the

plaintiff ought to have demanded within two months from the date of original decree i.e., on 25.7.1975. Since the 1st defendant did not execute a

sale deed as demanded, the present suit was filed for specific performance, impleading not only the 1st defendant, who is the executant of Ex A-1

agreement, but also defendants 2 to 5, the legal heirs of Kannappa Mudaliar. A decree was also sought against them that they must also be

compelled to join in executing the sale deed, in view of the decree obtained against Kannappa Mudaliar.

Defendants 2 to 5 did not contest the suit, and they remained ex parte. 1st Defendant alone contested the suit and her only contention was that

the suit is barred by limitation. According to her, the suit ought to have been filed within two months from the date of original decree and the suit

having been filed only in 1980 is barred by limitation.

On the above pleadings, the trial Court took oral and documentary evidence. The trial Court held that the suit is not barred by limitation and the

intention of the parties, while executing Ex.A-1 agreement was to get the sale deed, after the final adjudication of the rights, i.e., including the

decision in appeal. It was also found that the plaintiff has done all acts, which are expected to be done as per the agreement and out of Rs.

20,000/- paid as advance, an amount of Rs. 13,300/- was also deposited by the 1st defendant for payment towards Kannappa Mudaliar under

the reconveyance agreement. It was also found that the 1st defendant is now colluding with the other defendants and therefore she has refused to

execute the sate deed. It was also of the view that even after the decree has been obtained which has become final, the 1st defendant is not

executing the sale deed and she cannot plead inability to execute the sale deed. The trial Court was also of the view that defendants 2 to 5 who are

the legal heirs of Kannappa Mudaliar are also bound by the earlier decree, and there is an obligation on their part also to execute the sale deed in

favour of the plaintiff along with the 1st defendant, to avoid multiplicity of proceedings and documents. The suit was decreed.

Against the said Judgment, 1st defendant preferred A.S. No. 87 of 1982, on the file of Additional District Judge, Cuddalore. The Lower

Appellate Court was of the view that the suit is pre-mature, in the sense that the 1st defendant can execute a sale deed only after she herself gets a

document from defendants 2 to 5. As on the date of agreement and on the date of suit and also on the date of the decision in appeal, there is only

an agreement for sale, though the previous suit has been decreed, the ownership still continues with defendants 2 to 5. It was of the view that so

long as the 1st defendant is not the owner, the suit is pre-mature and 1st defendant has also no saleable interest, which could be conveyed to the

plaintiff. The appeal was allowed and the suit was dismissed.

It is against the said Judgment, plaintiff has preferred this Second Appeal on the following substantial question of law:-

Whether Ex.A-1 agreement of sale dated 5.10.1974 is valid in law?

From the written statement, I do not think that any of the parties has a case that Ex.A-1 agreement is invalid. 1st defendant herself admitted that

she has executed the agreement for sale and that she has also received Rs. 20,000/- as advance. The relevant portion of the agreement, as

extracted in the Judgment of the trial Court, reads thus:-

According to me, as per the terms of agreement, the 1st defendant is bound to execute the sale deed and since she refused to execute the sale

deed, the plaintiff has come forward before the Court, to take the sale deed in terms thereof. Defendants 2 to 5 have no objection in giving a

decree to the plaintiff, since they remained ex parte. Nowhere in the agreement it is said that only after getting a sale deed from defendants 2 to 5

or from late Kannappa Mudaliar, the 1st defendant shall agreement it is said that only after getting a sale deed from defendants 2 to 5 or from late

Kannappa Mudaliar, the 1st defendant shall execute the sale deed. In fact, the very contention raised in the written statement goes against the

present finding of the Lower Appellate Court. The only contention that was raised in the written statement was that the plaintiff has not come to

Court within a period of two months from the date of original decree and was not prepared to get a sale deed from defendants 2 to 5. The parties

were well aware as to the terms of agreement, and if the plaintiff is prepared to take a sale deed in terms thereof, the 1st defendant cannot refuse

to perform her part of contract.

It is not disputed that the decree in O.S. No. 481 of 1973 has become final and the appeal filed as A.S. No. 796 of 1975 was also dismissed

on 23.6.1980. The amount that is payable to Kannappa Mudaliar or defendants 2 to 5 was also deposited in Court by the 1st defendant from out

of the amount received by her as advance under Ex.A-1 agreement. She could have applied before that Court to have the sale deed executed. In

fact, execution application is not necessary for the said purpose. Sub-section (i) of Section 28 of the Special Relief Act reads thus:-

Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser

or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum

which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract

rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the

justice of the case may require.

In the decision reported in Ramankutty Vs. Avara, of the Judgment, their Lordships held thus:-

When Section 28 says that the application should be ''in the same suit'', it means in the suit itself i.e. on the original side and not in the execution

proceedings. After pass in the decree for specific performance, the court does not cease to have any jurisdiction. The Court retains control over

the decree even after the decree has been passed. It was open to the court to exercise the power u/s 28(1) of the Act either for extension of time

or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed,

namely the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory

application on the original side and disposed of according to law.

The said decision was followed by the Kerala High Court in a decision reported in Joseph and Another Vs. Joseph, In paragraph 7 of the

Judgment, a learned Judge of Kerala High Court held thus:-

The Supreme Court in Ramankutty Vs. Avara, , laid down that the execution court is not the ""same court"" within the meaning of Section 28 of

the Specific Relief Act. The question that arose there was whether an application u/s 28 of the Specific Relief Act, 1963 should be filed on the

original side or execution side. It was held that the Section indicates that it should be ""in the same suit"". It would obviously mean in the suit itself and

not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have

any jurisdiction. The court retains control over the decree even after the decree has. been passed. Earlier in the same case as reported in 1993 (1)

ILR Kerala series 197, this Court took the identical view while interpreting the expression ""in the same suit"" occurring in Sub-section (1) of Section

28 of the Specific Relief Act, 1963.

The 1st defendant is also barred from pleading inability, to execute the sale deed. In G.C.V. Subba Rao, on Law of Specific Relief 4th

Edition-1994 at page 614 of the book, the learned author has said thus:-

The inability may arise out of several causes namely, statutory limitation, misdescription, defect in title and legal prohibition. But this inability must

not arise from one''s own wrong or self induced inability or disability. As stated in Maxwell, on the general principle of avoiding injustice and

absurdity, any construction will, if possible, be rejected (unless the policy of the Act requires it) if it would enable a person by his own act to impair

an obligation which he has undertaken, or otherwise to profit by his own wrong. ""A man may not take advantage of his own wrong. He may not

plead in his own interest a self-created necessity.

The finding of the lower Appellate Court that the suit is pre-mature and the 1st defendant also cannot enter into an agreement for sale on the

date of Ex.A-1, is not a case neither pleaded nor could be legally supported. It must also be understood that under normal circumstances, in a suit

for specific performance, when the person seeking to perform the agreement is prepared to take the sale as it is, the question of title is irrelevant,

and the same also should not be considered. In this case, it must also be understood that when the parties entered into Ex.A-1 agreement, they

were aware of the real state of affairs, and in spite of the fact mat earlier litigation was pending, both parties omitted to say that the sale deed will

be executed only after getting the sale deed from Kannappa Mudaliar. When the parties have freedom of contract and they have understood the

scope and purport of the agreement and the plaintiff is also prepared to take the sale deed in terms thereof, I do not think that the lower Appellate

Court was justified in dismissing the suit as pre-mature.

In this connection, it must also be remembered that the 1st defendant is competent to assign her rights to anyone including the rights under the

decree. The person who is taking that right will be entitled to take the sale deed, on the basis of that contract. Section 146 of the CPC enables

such a person to continue the proceedings, if mat is required. It must also be noted that u/s 13 of the Specific Relief Act, a vendor is incompetent

to plead that she has no title or defective title. In C.V. Muni Samappa Vs. Kolala Gurunanjappa (dead) and Others, a Division Bench of this Court

has held thus:-

When a person sues for specific performance of an agreement to sell a house impleading only the two executants of the agreement who are the

only persons bound to carry out the agreement and the plaint does not make any reference to the sons of defendant 1, there is no necessity to

determine the question of the vendors'' title, and the fact that the title which the purchaser may acquire might he defeasible by sons of defendant 1 is

no ground for refusing specific performance if the purchaser is willing to take such title as the vendors have.

Similar view has been taken in the decisions reported in A.I.R 1972 Andhra Pradesh 178 (Mir Abdul Hakeem Khan v. Abdul Mannan Khadri)

and also in AIR 1975 Rajasthan 69 (Deenanath v. Chunnilal). In view of this settled legal position, the finding that the specific performance cannot

be granted against the 1st defendant by the Lower Appellate Court is not correct.

But, how far the said finding will enable the plaintiff to get the specific performance from all the other defendants is a matter to be considered. I

have already said that the suit was instituted not only against the 1st defendant, but also against the legal representatives of late Kannappa

Mudaliar, who are defendants 2 to 5 in the suit. A decree was granted by the trial Court, directing defendants 2 to 5 to join with the 1st defendant

in executing the sale deed in favour of the plaintiff. Defendants 2 to 5 did not have any objection in executing a document in favour of the plaintiff,

since they did not prefer any appeal against the decree. But the 1st defendant filed an appeal, wherein she made defendants 2 to 5 also parties

therein. The Lower Appellate Court has dismissed the suit, that means, even the decree as against defendants 2 to 5 was set aside.

In this Second Appeal, the plaintiff has not made defendant 2 to 5 as parties to the appeal. The suit as against defendants 2 to 5, which was

already dismissed by the lower Appellate Court has become final. That means, this Court can''t compel defendants 2 to 5 to execute a document in

favour of the plaintiff. The decree of the lower Appellate Court in A.S. No. 796 of 1975, is dated 23.6.1980. If an execution petition is to be filed,

twelve years period expired on 23.6.1992. Even if no execution application need be filed for a specific performance decree, necessary

interlocutory application is to be filed within a reasonable time. The default, if any of the 1st defendant though cannot be a ground to refuse specific

performance to the plaintiff in this case, cannot be made use of against defendants 2 to 5. Even if we hold that Court retains control of the decree

for specific performance, after passing the decree, there is an implied condition to the contract which is to be performed within a reasonable time,

even if no time is specified in the decree itself. It is now nearly 18 years since the decree of the Appellate Court in A.S. No. 796 of 1975 has

become final. Under the above circumstances, though the substantial question of law is found in favour of the appellant, I am constrained to dismiss

the Second Appeal, in view of the defect in framing the appeal. The Second Appeal is dismissed. No costs.