K.Janaki Ammal v. Masilamani Reddy(Died)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on: 14.12.2017

Delivered on:28.04.2018

CORAM

THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM S.A.No.1407 of 2000 J.Janaki Ammal ... Appellant/Defendant Vs.

1.Masilamani Reddy (Died) 2.Narayani Ammal 3.Arul 4.Sumathy 5.Vimala

...Respondents/Plaintiffs

(RR2 to 5 brought on record as Lrs of the deceased sole respondent vide order of Court dated 21.04.2014 made in CMP.Nos.1616 to 1618 of 2009.

PRAYER: Second Appeal filed under Section 100 of Cr.P.C., against the decree and judgment passed in A.S.No.114 of 1998 on the file of the Subordinate Judge of Kancheepuram, dated 23.02.2000 which in turn confirms the decree and judgment passed in O.S.No.410 of 1982 on the file of the Additional District Munsif Court, Kancheepuram dated 18.03.1998.

For Appellant :

M/s. K.Hariharan R.Thirupurasundari For Respondents :

Mr.A.Thamilzharasan

JUDGMENT

This Second Appeal has been filed by the defendant against the Judgment and Decree passed in A.S.No.114 of 1998 on the file of the Sub Judge, Kancheepuram, dated 23.02.2000 confirming the judgment and decree passed in O.S.No.410 of 1998 on the file of the Additional District Munsif Court, Kancheepuram, dated 18.03.1998.

2. The first respondent herein had filed a suit in O.S.No.410 of 1982 on the file of the Additional District Munsif Court, Kancheepuram, for Specific Performance of re-conveyance agreement dated 12.04.1977 and to direct the defendant to

execute and register a sale deed in respect of the suit property or in alternative for recovery of Rs.3,500/-. The learned Additional District Munsif, Kancheepuram by his judgment dated 26.06.1990 had decreed the suit directing the defendant to execute a sale deed in favour of the 1st respondent/plaintiff. As against the same, the defendant had filed an Appeal in A.S.No.59 of 1990 on the file of the Sub Judge, Kancheepuram. The learned Sub Judge, Kancheeepuram, by his judgment dated 08.04.1992, had set aside the judgment and decree passed by the Additional District Munsif, Kancheepuram dated 26.06.1990 and remanded the matter back to the Trial Court with a direction to frame an additional issue as to whether time was considered as the essence of contract and dispose of the same in accordance with law.

Accordingly, the suit was restored to the file and the learned Additional District Munsif, Kancheepuram, had framed two additional issues and after giving opportunity to both side to adduce additional evidence, disposed of the said suit on 18.03.1998, decreeing the suit for Specific Performance. Aggrieved by the same, the defendant had filed an Appeal in A.S.No.114 of 1998 on the file of the Sub-Judge, Kancheepuram. The learned Sub-Judge by his judgment dated 23.02.2000 had dismissed the said Appeal confirming the judgment and decree passed by the learned Additional District Munsif, Kancheepuram, dated 08.02.2000. As against the same, the defendant had filed the present Second Appeal. During pendency of this Second Appeal, the first respondent died and hence, his legal representatives have been impleaded as respondents 2 to 5.

For the sake of convenience, the parties are referred to as described before the trial Court.

3. The averments made in the plaint, in brief, are as follows:- The suit property is a house property and the same originally belonged to the plaintiff and his brother. The defendant obtained a sale of the entire house from the plaintiff on 12.04.1977 by a registered sale deed for the amount due on paddy dealings. On the same date i.e., on 12.04.1977 itself, the defendant had executed an agreement of reconveyance in favour of the plaintiff, agreeing to sell the suit house to the plaintiff for a sum of Rs.3,500/- within a period of 5 years. The plaintiff has been ready and willing to perform his part of the contract by paying the sale price of Rs.3,500/- and get the sale deed executed and registered at his cost. The plaintiff lastly approached the defendant and her husband on 01.04.1982 through third parties to obtain reconveyance.

But the defendant and her husband refused the same by demanding a huge amount. Hence, the plaintiff was constrained to file a suit for Specific Performance of reconveyance agreement dated 12.04.1977 or alternatively for recovery of Rs.3,500/- from the defendant.

4. The averments made in the written statement, in brief, are as follows:- It is true that the plaintiff had sold the suit property in favour of the defendant and the defendant had executed a letter agreeing to reconvey the house if the plaintiff paid the amount with interest at the rate of Rs.24% per annum within 5 years. The sale was on 11.04.1977 as alleged, in the plaint. The plaintiff is in possession of the house and he had agreed to pay the rent also. But he neither paid the interest nor the rent. It was agreed between the parties that if the plaintiff failed to pay the amount within 5 years, from the date of sale, he should surrender the possession of the house to the defendant. The plaintiff neither paid the amount nor informed the defendant that he is ready and willing to perform his part of contract.

The defendant had issued a notice on 31.05.1982, calling upon the plaintiff to surrender possession of the property for which there was no response from the plaintiff. It is false to state that the plaintiff had approached the defendant on 01.04.1982. The plaintiff never approached the defendant. The defendant is not liable to pay any amount to the plaintiff and therefore, prayed to dismiss the suit.

5. Based on the aforesaid pleadings, the learned Additional District Munsif, Kancheepuram had framed the following issues:-

1) whether, the plaintiff is entitled for the relief of reconveyance of the suit property?

2) whether, the defendant for the reasons stated in the written statement is not bound to deliver possession of the suit property?

3) To what relief?

6. On the aforesaid issues, a trial was conducted. During trial, on the side of the plaintiff, the plaintiff had examined himself as PW1 and he had also examined P.S.Santhanam as PW2 and marked Ex.A1 on his side. On the side of the defendant, the defendant examined himself as DW1 and examined one Vajravel as DW2. She had marked Exs.B1 to B3 as exhibits.

7. The learned Additional District Munsif, Kancheepuram, after considering the materials placed before him decreed the suit for Specific Performance by the judgment dated 26.06.1990. Aggrieved by the same, the defendant had filed an Appeal in A.S.No.59 of 1990 on the file of the learned Sub Judge, Kancheepuram. The learned Sub Judge, Kancheepuram, by the judgment dated 08.04.1992 had set aside the judgment of the trial Court dated 26.06.1990 and remitted back the matter to the trial Court with a direction to frame an additional issue as to

whether the time was considered as the essence of contract and dispose of the same, in accordance with law. Accordingly, the learned Additional District Munsif, Kancheepuram, had restored the suit on file and framed the following additional issues:-

1) whether, the suit is barred by limitation?

2) whether time was considered as the essence of contract?

8. Thereafter, the learned Additional District Munsif, Kancheepruam, gave an opportunity to both sides for adducing additional oral and documentary evidence. However, the parties did not adduce any additional evidence.

9. The learned Additional District Munsif, Kancheepuram, after considering the materials placed before her found that the suit was not barred by limitation and the time was considered as essence of contract. However, she found that the suit was filed within the time stipulated. Accordingly, she decreed the suit for Specific Performance. As against the same, the defendant had filed an Appeal in A.S.No.114 of 1998 on the file of the SubJudge, Kancheepuram. The learned Sub Judge, Kancheepuram, by the judgment dated 23.02.2000 had dismissed the Appeal confirming the judgment and decree of the learned Additional District Munsif, Kancheepuram. Aggrieved by the same, the defendant had preferred the present Second Appeal.

10. At the time of admitting the Second Appeal, this Court has framed the following substantial questions of law:- "1) whether the contract under Ex.A1 is enforceable in the absence of the document being duly stamped and whether it is admissible in evidence?

2) whether the plaintiff has established his readiness and willingness to perform the contract as required under Section 16 ( c ) of the Specific Relief Act?"

11. Heard M/s.A.Harikaran and R.Thirupurasundari, learned counsel for the appellant and Mr.A.Tamizharasan, learned counsel for the respondents.

12. The learned counsel for the appellant contended that in Ex.A1, it is stated that the plaintiff had sold his house property to the defendant on 11.04.1977 for a sum of Rs.3,500/- and if the plaintiff re-paid the said amount within 5 years, the defendant will execute the sale deed in favour of the plaintiff and therefore, the suit should have been filed within the time

stipulated in Ex.A1 (i.e.,) on or before 10.04.1977, whereas the plaintiff had filed the suit on 12.04.1982 and therefore, the suit is barred by limitation. He further contended that as per Ex.B1 lease agreement dated 24.02.1979, the plaintiff had agreed to pay a monthly rent of Rs.5/. but the plaintiff did not pay the rent. He further contended that before expiry of the time stipulated under Ex.A1 sale agreement, the plaintiff did not come forward to pay the sale amount and get the sale deed executed in his favour. He further contended that the plaintiff has not issued pre-suit notice, stating that he is ready and willing to perform his part of contract. He further contended that the alleged oral request made with the defendant to come and execute the sale deed is false.

He further contended that the conduct of the plaintiff would show that he was never ready and willing to perform his part of the contract, but, the courts below failed to consider those aspects and hence, he requested to allow the Second Appeal and dismiss the plaintiff's suit. In support of the said contentions, the learned counsel for the appellant relied upon the following decisions. (1). Smt.Chand Rani(dead) by LRs Vs. Smt.Kamal Rani (dead) by Lrs, AIR 1993 SC 1742.

(2). K.S.Vidyanadam and others Vs. Vairavan, AIR 1997 SC 1751.

(3). Manjunath Anandappa URF Shivappa Hansai Vs. Tammanasa and others, (2003) 10 SCC 390.

(4). V.S.Palanisamy Chettiar Firm Vs. C.Alagappan and another, AIR 1999 SC 918.

(5). Syed Dastagir Vs. T.R.Gopalakrishna Setty, AIR 1999 SC 3029.

(6). N.P.Thirugnanam (deda) by Lrs Vs. Dr.R.Jagan Mohan Rao and others, (1995) 5 SCC 115.

(7). Panchanan Dhara and others Vs. Monmatha Nath Maity (dead) through LRs and another (2006) 5 SCC 340. (8.) Shaik Mahaboob Saheb Vs. Kampasati Nageswara Rao, AIR 2008 Andhra Pradesh 55.

13. Per contra, the learned counsel for the respondents has contended that Ex.A1 agreement starts with the recital that the said document was executed on 12th day of April, 1977, but in the course of writing, it has been inadvertently mentioned that on 11.04.1977, the plaintiff had sold his property to the defendant for Rs.3,500/-. He further contended that the said date has been

written wrongly as 11.04.1977 instead of 12.04.1977 and based on the said clerical mistake, the defendant is contending that the sale deed itself was executed only on 11.04.1977 and agreement Ex.A1 was also executed on 11.04.1977. He further contended that the sale deed as well as Ex.A1 sale agreement were executed only on 12.04.1977 and as per the Ex.A1 sale agreement, the sale has to be completed within 5 years. He further contended that the oral evidence of PW1 and PW2 would clearly show that they had made request with the defendant to receive the sale price and execute the sale deed even before the time stipulated in Ex.A1 sale agreement and since the defendant refused to execute the sale deed, the plaintiff has filed the suit on 12.04.1982 which is clearly within the time stipulated under Ex.A1.

He further contended that the Courts below; taking into consideration all the aforesaid facts, came to the conclusion that the suit is not barred by limitation; that the plaintiff was ready and willing to perform his part of contract and that the plaintiff is entitled to the decree for Specific Performance and in the said factual and concurrent findings, this Court cannot interfere and hence, he requested to dismiss the Second Appeal.

14. Question No.1:- The appellant herein in the appeal memorandum has raised the following question of law as one of the substantial questions of law:- "e. Is the contract under Ex.A1 enforceable in the absence of being not duly stamped and is it admissible in evidence." It appears that based on the aforesaid question, this Court, at the time of admitting the Second Appeal, has formulated this question of law.

15. Ex.A1 is an unregistered reconveyance agreement dated 12.04.1977. It has been written on two rupees and fifty paise stamp papers. The said document was marked through PW1. At that time, the defendant has not raised any objection as the document is insufficiently stamped. As per Section 36 of the Indian Stamp Act, 1899, once a document has been admitted in evidence, it is not open either to the trial Court itself or a Court of appeal or revision to go behind that order (See Sengappan Vs. Arumbatha Veda Vinayagar Temple, 2000(1) MLJ 198). Therefore, it is not open to the appellant to raise a question in the Second Appeal as Ex.A1 has not been sufficiently stamped and the same is not admissible in evidence. Accordingly, this question of law is answered against the appellant.

16. Question No:2:- It is an admitted fact that the suit property is a residential house and the same originally belonged to the plaintiff. It is also an admitted fact that he had sold the suit

property to the defendant. According to the plaintiff, the suit property was sold to the defendant on 12.04.1977 for Rs.3,500/- and on the same date, the defendant had executed Ex.A1 sale agreement agreeing to re-convey the suit property if the plaintiff re-paid a sum of Rs.3,500/- within 5 years. Whereas, the case of the defendant is that the sale deed was executed on 11.04.1977 and on the same date, Ex.A1 sale agreement was executed by her and as per the said agreement, if the plaintiff re-paid a sum of Rs.3,500/- within 5 years, she had to re-convey the suit property in favour of the plaintiff. Her further case is that the period of 5 years stipulated under Ex.A1 expired on 10.04.1982 itself, but the suit was filed on 12.04.1982 and hence, the suit is barred by limitation.

17. Ex.A1 agreement starts with the recital that on 12th day of April, 1977, the defendant executed the said document in favour of the plaintiff, but in the course of writing, it is mentioned that on this date, the plaintiff had sold his house to the defendant on 11.04.1977 for Rs.3,500/-. Based on the aforesaid recital, the defendant took a stand that the sale deed as well as Ex.A1 sale agreement were executed only on 11.04.1977. It is pertinent to note that the defendant did not produce the sale deed which was executed by the plaintiff in her favour. If the said sale deed has been produced that it would throw a light on which date the said sale deed was executed. The defendant has purposely withheld the best evidence which is in her possession. Therefore, an adverse inference has to be drawn against the defendant.

18. It is also to be pointed out that in Ex.B2 notice, the defendant has stated that the sale deed was executed by the plaintiff on 11.04.1977. However, stated that she has executed a letter of reconveyance on 12.04.1977. So, it is clear that the defendant has admitted in Ex.B2 that Ex.A1 was executed only on 12.04.1977. Therefore, the contention of the defendant that Ex.A1 was executed on 11.04.1977 is not acceptable.

19. It is also to be pointed out that in Ex.A1, it has been stated that if the plaintiff paid Rs.3,500/- within a period of 5 years, the defendant would execute the sale deed in favour of the plaintiff. For proper appreciation, the relevant portion of Ex.A1 is extracted hereunder:- "ePh; vdf;F Rkhh; 5 tUlj;jpw;F ePh; nkw;go fpuaj; bjhifia vdf;F fl;l jahuhdJk; ehd; j';fs ; brytpy; fpuag;gj ;jpuk; vGjp gjpt[ bra;J je;J brhj;ij RthjPdk; mile;J ,e;j byl;liu thg!; bra;J tpl ntz;oaJ/"

20. A plain reading of the aforesaid recital would clearly show that the time was not considered as essence of contract.

Only an approximate time was fixed and therefore, it cannot be said that the time was considered as essence of contract. Even assuming that the time was considered as essence of contract, as already pointed out that Ex.A1 was executed on 12.04.1977 and the time stipulated in the said document would expire on 11.04.1982. A perusal of the calendar relating to the year 1982 would show that 11.04.1982 was a Sunday. The Court can take the judicial notice with regard to the aforesaid facts. A perusal of the recitals of the plaint shows that it was presented before the Court on 12.04.1982. Since 11.04.1982 was a Sunday, the suit which was filed on 12.04.1982 is within the time stipulated under Ex.A1. Therefore, looking from any angle, the suit is not barred by limitation.

21. Insofar as, readiness and willingness on the part of the plaintiff is concerned, according to the plaintiff, on 01.04.1982 he along with PW2 went to the defendant's house and made a request to receive the sale price and execute the sale deed, but she refused to execute the sale deed. PW2 also stated in his evidence that in the year 1982, he went to the defendant's house along with the plaintiff and the plaintiff made a request to the defendant to execute the sale deed, but the defendant refused. The oral evidence of PW1 is corroborated by the evidence of the PW2. The defendant while examining herself as DW1, during cross examination, though denied the suggestion that on 01.04.1982, the plaintiff came with PW2 and made a request to execute the sale deed, she has admitted that once, the plaintiff came, but she does not know as to when he came. The aforesaid statement of the defendant would show that the plaintiff has approached the defendant for getting the sale deed executed before filing of the suit.

22. The defendant also took a plea that the plaintiff has executed Ex.B1, agreement on 24.02.1979, agreeing to pay monthly rent of Rs.5/-, but the plaintiff did not pay the rent also. The plaintiff has denied the execution of Ex.B1. In Ex.B2 notice, the defendant has not stated that the plaintiff has executed a lease agreement on 24.02.1979. Even assuming that the plaintiff has executed Ex.B1 lease agreement that itself would not prevent the plaintiff from filing suit for Specific Performance based on Ex.A1 sale agreement.

23. In Smt.Chand Rani (dead) by L.Rs Vs. Smt.Kamal Rani (dead) by L.Rs. (supra) the purchaser had agreed to pay a part of the sale consideration i.e. Rs.98,000/- within a period of ten days only. In view of the fact that the word "only" has been used, the Hon'ble Supreme Court has held that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence of the contract.

24. In K.S.Vidyanadam and Ors. Vs. Vairavan (supra) the suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15th June, 1979. The suit notice was issued by the plaintiff only on 11.07.1981, i.e., more than two and half years after the expiry of six months period. Further, as per the agreement, the purchaser has to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property, but the purchaser has not performed the aforesaid acts and hence the Hon'ble Supreme Court refused to accept the case of the plaintiff.

25. In Manjunath Anandappa URF Shivappa Hanasi Vs. Tammanasa and others (supra) as per the agreement, the sale deed has to be obtained within 3 years. The plaintiff filed the suit almost after 6 years. He did not bring any material on record to show that he had even asked defendant No.1, the owner of the property, to execute a deed of sale. He filed the suit only after he came to know that the suit land had already been sold. Under the said circumstances the Hon'ble Supreme Court has held that the plaintiff, for obtaining a discretionary relief, should approach the Court within a reasonable time.

26. In the case on the hand, the facts are totally different. As already, pointed out that the DW1 herself has admitted in her cross-examination that the plaintiff once came and made a request to execute a sale deed. Further, the suit was filed within the time fixed under Ex.A1 sale agreement. Therefore, the aforesaid decisions will not be applicable to the facts of this case.

27. In V.S.Palanishamy Chettiar Firm Vs. C.Alagappan and another (supra), the agreement of sale was entered into about 19 years ago. No explanation was forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court. Extension of time to deposit sought 5 years after decree. Under the said circumstances, the Hon'ble Supreme Court refused to extend the time. But in the present case, there is no such circumstances exist. Hence, the aforesaid decision of will not help the appellant/defendant.

28. In Syed Dastagir Vs. T.R.Gopalakrishna Setty (supra) the Hon'ble Supreme Court has held that no specific phraseology or language is required to take a plea that the plaintiff is ready and willing to perform his part of contract. It was further held that the compliance of "readiness and willingness"has to be in spirit and substance and not in letter and form.

29. In N.P.Thirugnanam (Dead) by L.Rs. Vs. Dr.R.Jagan Mohan Rao and others (supra) the plaintiff neither deposited the amount of consideration nor furnished bank guarantee within the stipulated period in compliance with the order of the trial Court. It was also found that he was dabbling in real estate business without means to purchase the property. Under the said circumstances, the Hon'ble Supreme Court has held that the plaintiff was not ready and willing to perform his part of the contract.

30. In the instant case the plaintiff has averred in his plaint that he was always ready and willing to perform his part of contract. After passing of the decree, he also deposited the amount in the Court within the stipulated time. So, it is clear that the plaintiff has complied with the requirements of Section 16(c) of the Specific Relief Act.

31. In Panchanan Dhara and others Vs. Monmatha Nath Maity (dead) through L.Rs. and another (supra) the Hon'ble Supreme Court has held that in a suit for Specific Performance of contract in respect of any immovable property, time would ordinarily not be the essence of the contract. So, this decision also will not help the appellant/defendant.

32. In Shaik Mahaboob Saheb Vs. Kampasati Nageswara Rao (supra), as per the agreement, the plaintiff has to discharge the loan on or before 10.10.1981 which was borrowed by the defendant in the Co-operative Agricultural Development Bank. But the plaintiff did not discharge the said loan within the stipulated time. Under the said circumstances, the Hon'ble High Court of Andhra Pradesh has held that the conduct of the plaintiff would show that he was not ready and willing to perform his part of contract. No such circumstance exists in the present case. So, the aforesaid decision will not be applicable to the facts of this case.

33. Admittedly, the plaintiff is in possession of the suit property in pursuance of Ex.A1 sale agreement. Therefore, under Section 52 A of the Transfer of Property Act, as part performance of the sale agreement, the plaintiff is in possession of the suit property and he is entitled to retain possession. So far, the defendant has not filed any suit for recovery of the possession. The Courts below have concurrently found that the plaintiff is entitled for the relief of Specific Performance. Therefore, this Court, cannot interfere with the said concurrent factual findings. Accordingly, this substantial question of law is also answered against the appellant/defendant.

34. In the result, the Second Appeal is dismissed. The judgments and decrees passed by the Courts below are confirmed. Considering the facts and circumstances of the case, the parties are directed to bear their own cost.

Sd/- Assistant Registrar(CS-vi) //True Copy// Sub Assistant Registrar dna

1. THE SUBORDINATE JUDGE, KANCHEEPURAM.

2. THE ADDITIONAL DISTRICT MUNSIF, KANCHEEPURAM.

3. THE SECTION OFFICER, V.R. SECTION, HIGH COURT, MADRAS.(2 COPIES) +1cc to MR.K.HARIHARAN, Advocate, S.R.No. 32342 Pre-delivery Judgment made in S.A.No.1407 of 2000 GP(CO) TR(01/08/2018)