Madras High Court
Kannammal vs Ranganayaki on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.754 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
S.A.No.754 of 2010
Kannammal .. Appellant
Versus
1. Ranganayaki
2. The Executive Engineer,
Tamil Nadu Housing Board,
Kowli Ground Road,
Coimbatore.
3. Baby alias Vijayalakshmi
4. Guna alias Gunapathy
5. Hari alias Sri Hari
6. Mohan Raj .. Respondents
Second Appeal filed under Section 100 of C.P.C against decree and
judgment dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned
Principal Sub Judge, Coimbatore confirming the decree and judgment dated
01.04.2004 in O.S.No.515 of 1997 on the file of the learned Principal District
Munsif, Coimbatore.
For Appellant : Mr. N. Manokaran
For Respondent 1 : Mrs. AL. Gandhimathi,
Senior Counsel
for M/s. CT. Murugappan
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For Respondent 2 : Mr. C. Kalaiselvan
Standing Counsel
: R3 to R6 – Notice served. No appearance.
JUDGMENT
This Second Appeal has been filed against the decree and judgment
dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned Principal Sub
Judge, Coimbatore confirming the decree and judgment dated 01.04.2004 in
O.S.No.515 of 1997 on the file of the learned Principal District Munsif,
Coimbatore.
2. Brief facts which are relevant for consideration in this Second Appeal
are as follows:
2.1 The Defendant-1 is an illiterate woman. The suit property belongs to
the Defendant-1 which is an extent of 5 cents 187 sq.ft of vacant house site in
Coimbatore City, Sowripalayam.
2.2 Defendant-1 was a widow. She had applied for loan with the Tamil
Nadu Housing Board. She had handed over possession of the property to the
Tamil Nadu Housing Board. The Tamil Nadu Housing Board had put up
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S.A.No.754 of 2010construction in the property belonging to the Defendant-1 and for the cost of
construction they had imposed equal monthly installment of Rs.83/- from the
1st Defendant for 20 years. The Plaintiff herein was inducted as a permissive
occupier by Defendant-1, as the Plaintiff was an acquaintance of Defendant-1.
The possession was handed over to the Plaintiff only as a permissive occupier.
The Plaintiff paid Rs.83/- to the Tamil Nadu Housing Board towards the
amount that was imposed by Tamil Nadu Housing Board on Defendant-1.
2.3. It is the claim of the Plaintiff that she had entered into sale
agreement on 01.03.1980. The suit property was purchased by the Defendant-
1 as per sale deed dated 10.04.1974 which was marked during trial as Ex.X-2.
The Plaintiff had cleverly obtained a deed dated 01.03.1980 from the
Defendant-1 as though she undertook to pay the amount on behalf of the
Plaintiff. Believing the representation of the Plaintiff, the Defendant-1 had
affixed her thumb impression. As per the contents of the sale agreement dated
01.03.1980, Plaintiff claims that she had paid Rs.83/- per month to the Tamil
Nadu Housing Board and she had paid Rs.8,000/- towards the construction
cost and balance Rs.8,000/- she paid regularly. Advance amount of Rs.8,000/-
was paid. Balance amount was to be paid by the Plaintiff to Tamil Nadu
Housing Board. According to the Plaintiff version, she had paid over and
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S.A.No.754 of 2010
above Rs.16,000/- and the remaining due to Tamil Nadu Housing Board is
only Rs.14,000/- whereas only Rs.8,000/- was payable to Tamil Nadu Housing
Board. But, instead of Rs.8,000/-, the Plaintiff had paid Rs.14,000/-. Plaintiff
issued pre suit notice dated 17.08.1996 under Ex.A-9. This was after 16 years,
the suit for specific performance was filed. This is the gist of the Plaintiff’s
case.
2.4 The suit was resisted by the Defendant-1 by filing a written
statement wherein she denied the sale agreement and she claimed that her
illiteracy was exploited by the Plaintiff. Defendant-1 had not signed any
document. She did not have intention to sell the property. The claim of the
Plaintiff that she had paid over and above the sale consideration was not
proved during the trial. Prior to the Plaintiff issuing notice on 17.08.1996
under Ex.A-9, the Defendant-1 had issued legal notice on the Plaintiff on
30.05.1995. Much before the pre suit notice by Plaintiff under Ex.A-9,
directing the Plaintiff to surrender possession taken by the Defendant-1. Also
the Defendant-1 had filed suit in O.S.No.1617 of 1995 against this Plaintiff
seeking declaration of title and for delivery of possession. The suit was
dismissed for non prosecution. Lastly the Plaintiff had taken a plea of adverse
possession which is against settled principles of law. The trial Judge had
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S.A.No.754 of 2010
framed only three issues as in the suit for specific performance as to whether
the Defendant-1 filed suit suppressed by the Plaintiff.
3. The learned Counsel for the Appellant invited the attention of this
Court to the issues framed by the learned trial Judge. There is no issue raised
regarding limitation. There is no issue raised regarding the Plaintiffs’ readiness
and willingness to perform his part of the contract. The suit filed by the
Plaintiff was filed after 16 ½ years after the execution of the sale agreement.
The trial Court decreed the suit on three grounds. (1) Defendant-1 admits her
thumb impression under Ex.A-1 during her evidence. (2) the suit is not barred
by limitation. The Plaintiff claims that she had claimed Tamil Nadu Housing
Board but there is nothing on record to prove such claim (3) The suit in
O.S.No.1617 of 1995 was allowed to be dismissed for non prosecution. These
are the three grounds based on which the learned trial Judge had granted
decree to the Plaintiff. The learned Appellate Judge dismissed the Appeal.
Also the learned Sub Judge as Appellate Judge had given bona fide that the
sale agreement is registered. The first Appellate Court had also not raised the
question of willingness for consideration in point for determination. The
plaint filed by the Plaintiff is silent about the readiness and willingness.
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S.A.No.754 of 2010
4. The Tamil Nadu Housing Board filed I.A.No.672 of 2009 in A.S
before the Appellate Court stating that no amount was paid by the Plaintiff as
claimed in the plaint and also stating that Rs.6,800/- is due by the Plaintiff.
Therefore, readiness and willingness was not in the pleadings. Therefore, no
issue was raised. From the date of agreement till the date of filing of the suit,
the Plaintiff was silent about the readiness and willingness which is against the
settled proposition of law as laid by the Honourable Supreme Court in AIR
2022 SCC 1275. In a suit for specific performance, the Plaintiff has to prove
the claim that the Plaintiff was ready and willing to perform his part of the
contract. The claim that the Plaintiff paid Rs.8,000/- to the Tamil Nadu
Housing Board is incorrect. Still there is an outstanding of Rs.6,800/- which is
the pending payment to the Tamil Nadu Housing Board. As per the reported
decision cited above, the Plaintiff shall plead and prove that the Plaintiff is
ready and willing to perform his part of the contract.
5. The Appellant/Defendant-1 had filed written statement stating that she
had purchased the suit property from TNHB under a sale deed dated
10.04.1974 (Doc.No.1400/1974) as a vacant site and after construction of a
house by the Tamil Nadu Housing Board/Defendant-2, the possession was
handed over to Defendant-1 subject to the condition to pay Rs.83/- per month
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S.A.No.754 of 2010
for 20 years. Defendant-1 is a poor illiterate old lady. She had orally
permitted the Plaintiff to be in possession. While so, the Plaintiff took
advantage of the illiteracy of Defendant-1 and managed to get her signature in
some stamp papers during February, 1980. Defendant-1 never entered into any
sale agreement with the Plaintiff agreeing to sell the suit property.
6. The suit is for specific performance of an agreement. It is for the
Plaintiff to prove her readiness and willingness to perform her obligations
under the agreement. Section 16 of the Specific Relief Act bars the relief of
specific performance in favour of a person, who fails to aver and prove her
readiness and willingness to perform her part of contract. Absolutely there is
no averment to prove readiness and willingness as per the mandate of Form
47 of Appendix A of Order 6 Rule 3 CPC, which reads as under:
“The plaintiff has been and still is ready and willing specifically to
perform the agreement on his part of which the defendant has had notice”
7. In support of his contention, the learned Counsel for the Appellant
relied on the reported decision in the case of Padmakumari and Others v.
Dasayyan and Others reported in (2015) 8 Supreme Court cases 695,
particularly paragraph 11, 21 and 22 which are held as follows:
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S.A.No.754 of 2010“11. Another ground urged by learned counsel for defendant Nos. 12 to 15
is that the pleadings on behalf of the plaintiff must be strictly in conformity
with Order 6 Rule 3 of the Code of Civil Procedure (“CPC” for short) which
provides Form of pleadings and placed strong reliance upon Clause 3 of Form
No. 47 in Appendix ‘A’ which reads thus:
“The plaintiff has been and still is ready and willing specifically to perform the
agreement on his part of which the defendant has had notice”.
21. The second important legal contention raised by defendant Nos. 12 to
15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3
CPC, clause 3 of Form No. 47 in Appendix ‘A’, extracted hereinabove. By a
careful reading of paragraph 6 of the plaint makes it very clear that the averment
as provided under clause 3 is not in stricto sensu complied with by the plaintiff.
The same is evidenced from the averments made at paragraph 6 of the plaint
which reads thus:
“6. The plaintiff is ready and willing to perform his part of the contract by
paying the balance of sale consideration of Rs. 63,000/- and take the sale deed
in accordance with the provisions of the agreement deed dated 19.04.1992.”
22. Upon a careful reading of the above said paragraph we have to hold
that the plaintiff has not complied with the legal requirement which is
mandatory as provided under Section 16 (c) of the Specific Relief
Act. Section 16(c) fell for consideration and has been interpreted by this
Court in a number of cases, referred to supra, upon which reliance has
rightly been placed and the said decisions are applicable to the fact
situation in support of defendant Nos. 12 to 15 and, therefore, we have to
hold that the concurrent finding of fact recorded by the High Court on
Issue No. 1 is erroneous in law and is liable to be set aside.”
8. Suit sale agreement is dated 01.03.1980. Suit was filed on
06.03.1997 ie., after 17 years. Limitation for filing the suit is 3 years as per
Article 54 of the Limitation Act, 1963. Even in the absence of any time limit
fixed in the agreement, the plaintiff has to file a suit within a reasonable time.
Whereas the Plaintiff has filed the above suit after an unreasonable delay of 17
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years. Thus, the Plaintiff is liable to be non-suited on the sole ground of delay
and latches.
9. In support of this contention, the learned Counsel for the Appellant
relied on the reported decision in the case of Veerayee Ammal vs. Seeni
Ammal reported in (2002) 1 Supreme Court Cases 134 wherein it has been
observed as follows:
“12. In K.S. Vidyanadam & Ors. v. Vairavan this Court held:
“Even where time is not of the essence of the contract, the plaintiffs must
perform his part of the contract within a reasonable time and reasonable
time should be determined by looking at all the surrounding
circumstances including the express terms of the contract and the nature
of the property.”
13. The word “reasonable” has in law prima facie meaning of
reasonable in regard to those circumstances of which the person
concerned is called upon to act reasonably knows or ought to know as to
what was reasonable. It may be unreasonable to give an exact definition
of the word “reasonable”. The reason varies in its conclusion according
to ideosyncrasy of the individual and the time and circumstances in
which he thinks. The dictionary meaning of the “reasonable time” is to
be so much time as is necessary, under the circumstances, to do
conveniently what the contract or duty requires should be done in a
particular case. In other words it means as soon as circumstances
permit. In Law Lexicon it is defined to mean “A reasonable time, looking
at all the circumstances of the case; a reasonable time under ordinary
circumstances; as soon as circumstance will permit; so much time as is
necessary under the circumstances, conveniently to do what the contract
requires should be done; some more protracted space thant ‘directly’;
such length of time as may fairly, and properly, and reasonably be
allowed or required, having regard to the nature of the act or duty and to
the attending circumstances; all these convey more or less the same
idea.”
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10. Proof of readiness and willingness is of paramount consideration in
a suit for specific performance. In fact, both the Courts below have not even
framed an issue as to the readiness and willingness. No suit for specific
performance could be decided without framing an issue on readiness and
willingness. In view of the discretion under Section 20 of the Specific Relief
Act, a suit for specific performance cannot be decreed merely because it is
lawful to do so. A person seeking equitable relief must show his readiness and
willingness from the inception till the agreement culminated into a sale deed.
Readiness and willingness is a continuous process that must be present
throughout the period of agreement. In the present case, there is no iota of
evidence to prove ‘willingness’ which is a mental attitude to perform the part of
her obligation. When both the elements of readiness and willingness are
absent, the suit must fail.
11. In support of this contention, the learned Counsel for the Appellant
relied on the reported decision in the case of U.N.Krishnamurthy vs.
A.M.Krishnamurthy reported in (2023) 11 Supreme Court Cases 775,
wherein the Hon’ble Supreme Court has observed particularly in paragraphs
20, 24 to 30 and 45 to 47, which are as follows:
“20. It is well settled that, in a suit for Specific Performance of an
agreement, it is for the Plaintiff to prove his readiness and willingness to10/55
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S.A.No.754 of 2010perform his obligations under the agreement. Where a certain amount
has been paid in advance and the balance is required to be paid within a
stipulated time, it is for the Plaintiff to show that he was in a position to
pay the balance money. The Plaintiff has to prove that he has the money
or has alternatively made necessary arrangements to get the money. In
this case, the Original Defendant/Appellants have all along contended
that the Plaintiff Respondent neither offered to pay nor was in a position
to pay the balance consideration of Rs.15,00,000/-.
24.To aver and prove readiness and willingness to perform an obligation
to pay money, in terms of a contract, the plaintiff would have to make
specific statements in the plaint and adduce evidence to show
availability of funds to make payment in terms of the contract in time. In
other words, the plaintiff would have to plead that the plaintiff had
sufficient funds or was in a position to raise funds in time to discharge
his obligation under the contract. If the plaintiff does not have sufficient
funds with him to discharge his obligations in terms of a contract, which
requires payment of money, the plaintiff would have to specifically plead
how the funds would be available to him. To cite an example, the plaintiff
may aver and prove, by adducing evidence, an arrangement with a
financier for disbursement of adequate funds for timely compliance with
the terms and conditions of a contract involving payment of money.
25.In Man Kaur v. Hartar Singh Sangha1, this Court held that:
“40. …..A person who fails to aver and prove that he has performed or
has always been ready and willing to perform the essential terms of the
contract which are to be performed by him (other than the terms the
performance of which has been prevented or waived by the defendant) is
barred from claiming specific performance. Therefore, even assuming
that the defendant had committed breach, if the plaintiff fails to aver in
the plaint or prove that he was always ready and willing to perform the
essential terms of contract which are required to be performed by him
(other than the terms the performance of which has been prevented or
waived by the plaintiff), there is a bar to specific performance in his
favour. Therefore, the assumption of the respondent that readiness and
willingness on the part of the plaintiff is something which need not be
proved, if the plaintiff is able to establish that the defendant refused to
execute the sale deed and thereby committed breach, is not correct. Let
us give an example. Take a case where there is a contract for sale for a
consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid
and the vendor wrongly refuses to execute the sale deed unless the
purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear
breach by the defendant. But in that case, if the plaintiff did not have the11/55
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S.A.No.754 of 2010balance Rs. 9 lakhs (and the money required for stamp duty and
registration) or the capacity to arrange and pay such money, when the
contract had to be performed, the plaintiff will not be entitled to specific
performance, even if he proves breach by the defendant, as he was not
“ready and willing” to perform his obligations.”
26.In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd.
And Anr.2 cited by Mr. Venugopal, this Court speaking 1 (2010) 10 SCC
512 2 AIR 1968 SC 1355 through Ramaswamy J. held that “it is well-
settled that in a suit for specific performance the plaintiff should allege
that he is ready and willing to perform his part of the contract…..” and
if the fact is traversed, he is 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. For such conclusion the learned
Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v.
Flora Sassoon3.
27. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra), in the
absence of an averment on the part of the Plaintiff in the plaint, that he
was ready and willing to perform his part of the contract, it was held
that the Plaintiff had no cause of action so far as the relief for Specific
Performance was concerned. In this case, of course, there is an
averment in the plaint that the Respondent Plaintiff was all along ready
and willing to perform his obligations under the contract. The question
is whether the Respondent Plaintiff had proved his readiness and
willingness to perform his obligations under the contract.
28. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. 4, this
Court reiterated that Section 16(c) of the Specific Relief Act, 1963
envisages that the Plaintiff must plead and prove that he had performed
or has always been ready and willing to perform the essential terms of
the contract which were to be performed by him 3 55 IA 300, at pg.
372:AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the
performance of which has been prevented or waived by the
Defendant. In N.P. Thirugnanam (supra) this Court said that the
continuous readiness and willingness on the part of the Plaintiff was a
condition precedent for grant of the relief of Specific Performance.
29. This Court, in effect, held that for determining whether the Plaintiff
was ready and willing to perform his part of the agreement it is
necessary for the Court to consider the conduct of the Plaintiff prior and
subsequent to filing the suit for specific performance. The relevant part
of the judgment is extracted hereinbelow:– “5. …Section 16(c) of the Act
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S.A.No.754 of 2010
envisages that plaintiff must plead and prove that he had 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 those terms the
performance of which has been prevented or waived by the defendant.
The continuous readiness and willingness on the part of the plaintiff is a
condition precedent to grant the relief of specific performance. This
circumstance is material and relevant and is required to be considered
by the court while granting or refusing to grant the relief…”
30. In Umabai v. Nilkanth Dhondiba Chavan 5, this Court held that a
finding as to whether the Plaintiffs were all along and still ready and
willing to perform their part of the contract, was a mandatory
requirement under Section 16(c) of the Specific Relief Act. The Court
would necessarily have to arrive at the finding that the Plaintiff all along
were, and still are ready and also willing to perform their part of 5
(2005) 6 SCC 243 the contract, taking into account the entirety of the
pleadings as also the evidence brought on record. To quote this Court:-
“So far there being a plea that they were ready and willing to perform
their part of the contract is there in the pleading, we have no hesitation
to conclude, that this by itself is not sufficient to hold that the appellants
were ready and willing in terms of Section 16(c) of the Specific Relief
Act. This requires not only such plea but also proof of the same. Now
examining the first of the two circumstances, how could mere filing of
this suit, after exemption was granted be a circumstance about
willingness or readiness of the plaintiff. This at the most could be the
desire of the plaintiff to have this property. It may be for such a desire
this suit was filed raising such a plea. But Section 16( c) of the said Act
makes it clear that mere plea is not sufficient, it has to be proved.”
45. It is settled law that for relief of specific performance, the
Plaintiff has to prove that all along and till the final decision of the suit,
he was ready and willing to perform his part of the contract. It is the
bounden duty of the Plaintiff to prove his readiness and willingness by
adducing evidence. This crucial facet has to be determined by
considering all circumstances including availability of funds and mere
statement or averment in plaint of readiness and willingness, would not
suffice.
46. In this case, the Respondent Plaintiff has failed to discharge
his duty to prove his readiness as well as willingness to perform his part
of the contract, by adducing cogent evidence. Acceptable evidence has
not been placed on record to prove his readiness and willingness.
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S.A.No.754 of 2010
Further, it is clear from the Respondent Plaintiff’s balance sheet that he
did not have sufficient funds to discharge his part of contract in March
2003. Making subsequent deposit of balance consideration after lapse of
seven years would not establish the Respondent Plaintiff’s readiness to
discharge his part of contract. Reliance may be placed on Umabai v.
Nilkanth Dhondiba Chavan (supra) where this Court speaking through
Justice SB Sinha held that deposit of amount in court is not enough to
arrive at conclusion that Plaintiff was ready and willing to perform his
part of contract. Deposit in court would not establish Plaintiff’s
readiness and willingness within meaning of section 16(c) of Specific
Relief Act. The relevant part of the judgment is reproduced below: –
“45. …Deposit of any amount in the court at the appellate stage by the
plaintiffs by itself would not establish their readiness and willingness to
perform their part of the contract within the meaning of Section 16(c) of
the Specific Relief Act…”
47. It is, therefore, patently clear that the Respondent Plaintiff has
failed to prove his readiness to perform his part of contract from the date
of execution of the agreement till date of decree, which is a condition
precedent for grant of relief of specific performance. This Court finds
that the Respondent Plaintiff was not entitled to the relief of specific
performance.
12. In the case of Shenbagam and Others v. K.K.Rathinavel reported in
AIR 2022 SC 1275, particularly to paragraphs 14 to 18, 28, 29, 37 and 41,
which are held as follows:
14. Section 16 of the Specific Relief Act provides certain bars to
the relief of specific performance. These include, inter alia, a
person who fails to aver and prove that he has performed or has
always been “ready and willing” to perform the essential terms
of the contract which are to be performed by him, other than
terms the performance of which has been prevented and waived
by the defendant. In JP Builders v. A Ramadas Rao (2011) 1 SCC
429, a two-judge Bench of this Court observed that Section 16(c)
mandates “readiness and willingness” of the plaintiff and is a
condition precedent to obtain the relief of specific performance.
The Court held:
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S.A.No.754 of 2010“25. Section 16(c) of the Specific Relief Act, 1963 mandates
“readiness and willingness” on the part of the plaintiff and it is a
condition precedent for obtaining relief of grant of specific
performance. It is also clear that in a suit for specific
performance, the plaintiff must allege and prove a continuous
“readiness and willingness” to perform the contract on his part
from the date of the contract. The onus is on the plaintiff.
[…]
27. It is settled law that even in the absence of specific plea by the
opposite party, it is the mandate of the statute that the plaintiff
has to comply with Section 16(c) of the Specific Relief Act and
when there is non-compliance with this statutory mandate, the
court is not bound to grant specific performance and is left with
no other alternative but to dismiss the suit. It is also clear that
readiness to perform must be established throughout the relevant
points of time. “Readiness and willingness” to perform the part
of the contract has to be determined/ascertained from the conduct
of the parties.”
15.The Court further observed that “readiness” refers to the
financial capacity and “willingness” refers to the conduct of the
plaintiff wanting the performance.
16.Similarly, in His Holiness Acharya Swami Ganesh Dassji v.
Sita Ram Thapar (1996) 4 SCC 526, a two-judge Bench of this
Court observed that “readiness” means the capacity of the
plaintiff to perform the contract which would include the
financial position to pay the purchase price. To ascertain
“willingness”, the conduct of the plaintiff has to be properly
scrutinised. The Court noted:
“2. There is a distinction between readiness to perform the
contract and willingness to perform the contract. By readiness
may be meant the capacity of the plaintiff to perform the contract
which includes his financial position to pay the purchase price.
For determining his willingness to perform his part of the
contract, the conduct has to be properly scrutinised. […] The
factum of readiness and willingness to perform the plaintiff’s part15/55
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S.A.No.754 of 2010of the contract is to be adjudged with reference to the conduct of
the party and the attending circumstances. The court may infer
from the facts and circumstances whether the plaintiff was ready
and was always ready and willing to perform his part of the
contract. The facts of this case would amply demonstrate that the
petitioner/plaintiff was not ready nor had the capacity to perform
his part of the contract as he had no financial capacity to pay the
consideration in cash as contracted and intended to bide for the
time which disentitles him as time is of the essence of the
contract.”
17.The precedents of this Court indicate that the plaintiff must
establish that he was “ready and willing” to perform the
contract. In this regard, the conduct of the plaintiff must be
consistent.
18.In another decision in Atma Ram v. Charanjit Singh (2020) 3
SCC 311, a two-judge Bench of this Court dealt with a case
where an agreement for sale of immovable property was entered
into between the petitioner and respondent. The date for
performance of the contract was fixed as 7 October 1996. A legal
notice was issued by the petitioner on 12 November 1996 seeking
performance of the contract by the respondent, and thereafter a
suit was filed. The plaintiff sought a mandatory injunction to
direct the respondent to execute documents for transfer of the
property. However, the trial court chose to treat it as a suit for
specific performance of the contract. In declining the relief of
specific performance, the Court observed:
“9. Coming to the second aspect revolving around Section
16(c), a look at the judgment of the trial court would show that
no issue was framed on the question of readiness and willingness
on the part of the petitioner-plaintiff in terms of Section 16(c) of
the Specific Relief Act, 1963. The fact that the petitioner chose to
issue a legal notice dated 12-11-1996 and the fact that the
petitioner created an alibi in the form of an affidavit executed
before the Sub-Registrar on 7-10-1996 (marked as Ext. P-2) to
show that he was present before the Sub-Registrar for the
purpose of completion of the transaction, within the time16/55
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S.A.No.754 of 2010stipulated for its performance, was not sufficient to conclude that
the petitioner continued to be ready and willing even after three
years, on 13-10-1999 when the plaint was presented. No
explanation was forthcoming from the petitioner for the long
delay of three years, in filing the suit (on 13-10-1999) after
issuing a legal notice on 12-11-1996. The conduct of a plaintiff is
very crucial in a suit for specific performance. A person who
issues a legal notice on 12-11-1996 claiming readiness and
willingness, but who institutes a suit only on 13-10-1999 and that
too only with a prayer for a mandatory injunction carrying a
fixed court fee relatable only to the said relief, will not be entitled
to the discretionary relief of specific performance.”
28. No issue on readiness and willingness was framed by the trial
court. The trial court analysed the notice issued by the appellants
and held that the appellants made no demand from the
respondent to discharge the mortgage liability. Thus, the
appellants” plea that the respondent-plaintiff had to pay the loan
and only thereafter, could the appellants execute the sale deed
was rejected. The court also accepted the respondent”s argument
that the advance amount of Rs. 10,000 was paid to discharge the
mortgage. Further, the trial court observed that the documents
submitted by the respondent indicate that he had sufficient means
to purchase the suit property. The judgment of the trial court was
upheld by the first appellate court and, in a second appeal, by the
High Court.
29. All the three courts, including the High Court, grossly
erred in the manner in which they have adjudicated upon this
dispute in a suit for specific performance. In the first instance,
the trial court failed to frame an issue on whether the respondent-
plaintiff was ready and willing to perform his obligations under
the contract and instead assessed whether he is entitled to the
relief of specific performance. In doing so, the trial court viewed
the legal issue from an incorrect lens. The foundation of a suit for
specific performance lies in ascertaining whether the plaintiff has
come to the court with clean hands and has, through his conduct,
demonstrated that he has always been willing to perform the
contract. There is a conspicuous absence in judgment of the trial
court of any reference to evidence led by the respondent to
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indicate his willingness to perform the contract. The trial court
merely adverted to “document produced on behalf of the
plaintiff” and concluded that he had sufficient means to purchase
the suit property. Apart from this observation, the judgment fails
to analyse the terms of the agreement, the obligations of the
parties and the conduct of the respondent or the appellant.
37. In the context of the discretion under Section 20 of the
Specific Relief Act, several decisions of this Court have
considered whether it is appropriate to direct specific
performance of a contract relating to the transfer of immovable
property, especially given the efflux of time and the escalation of
prices of property. In Satya Jain v. Anis Ahmed Rushdie (2013) 8
SCC 131, this Court held:
“39. The long efflux of time (over 40 years) that has occurred and
the galloping value of real estate in the meantime are the twin
inhibiting factors in this regard. The same, however, have to be
balanced with the fact that the plaintiffs are in no way
responsible for the delay that has occurred and their keen
participation in the proceedings till date show the live interest on
the part of the plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement
and that too after elapse of a long period of time, undoubtedly,
has to be exercised on sound, reasonable, rational and
acceptable principles. The parameters for the exercise of
discretion vested by Section 20 of the Specific Relief Act, 1963
cannot be entrapped within any precise expression of language
and the contours thereof will always depend on the facts and
circumstances of each case. The ultimate guiding test would be
the principles of fairness and reasonableness as may be dictated
by the peculiar facts of any given case, which features the
experienced judicial mind can perceive without any real
difficulty. It must however be emphasised that efflux of time and
escalation of price of property, by itself, cannot be a valid ground
to deny the relief of specific performance. […]
41. The twin inhibiting factors identified above if are to be read
as a bar to the grant of a decree of specific performance would
amount to penalising the plaintiffs for no fault on their part; to18/55
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S.A.No.754 of 2010deny them the real fruits of a protracted litigation wherein the
issues arising are being answered in their favour.”
41. True enough, generally speaking, time is not of the
essence in an agreement for the sale of immoveable property. In
deciding whether to grant the remedy of specific performance,
specifically in suits relating to sale of immovable property, the
courts must be cognizant of the conduct of the parties, the
escalation of the price of the suit property, and whether one party
will unfairly benefit from the decree. The remedy provided must
not cause injustice to a party, specifically when they are not at
fault. In the present case, three decades have passed since the
agreement to sell was entered into between the parties. The price
of the suit property would undoubtedly have escalated. Given the
blemished conduct of the respondent-plaintiff in indicating his
willingness to perform the contract, we decline in any event to
grant the remedy of specific performance of the contract.
However, we order a refund of the consideration together with
interest at 6% per annum.
13. Defendant-1 had issued a legal notice dated 30.05.1995 (Ex.B-1) to
the Plaintiff. There was no reply from the Plaintiff. Whereas, the Plaintiff
chose to issue a pre-suit notice dated 17.08.1996 (Ex.A-9) ie., after 1 year and
3 months, and again took 8 more months to file the suit on 06.03.1997. In
effect, after knowing the stand of Defendant-1 as early as on 30.05.1995
(Ex.B-1), the Plaintiff has taken almost 2 years time to file the suit for specific
performance. No explanation was forthcoming from the Plaintiff for the delay
at every stage, before filing the suit. The Plaintiff who issued a legal notice on
17.08.1996, instituted a suit only on 06.03.1997, which would disentitle her to
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get the discretionary relief of specific performance.
14. In support of this contention, the learned Counsel for the Appellant
relied on the reported decision in the case of Atma Ram v. Charanjit Singh
reported in (2020) 3 Supreme Court Cases 311, particularly paragraph 9, in
which it is held as follows:
“9. Coming to the second aspect revolving around Section
16(c), a look at the judgment of the Trial Court would show that
no issue was framed on the question of readiness and willingness
on the part of the petitioner/plaintiff in terms of Section 16(c) of
the Specific Relief Act, 1963. The fact that the petitioner chose to
issue a legal notice dated 12.11.1996 and the fact that the
petitioner created an alibi in the form of an affidavit executed
before the Sub-Registrar on 7.10.1996 (marked as Exhibit P2) to
show that he was present before the Sub-Registrar for the
purpose of completion of the transaction, within the time
stipulated for its performance, was not sufficient to conclude that
the petitioner continued to be ready and willing even after three
years, on 13.10.1999 when the plaint was presented. No
explanation was forthcoming from the petitioner for the long
delay of three years, in filing the suit (on 13.10.1999) after
issuing a legal notice on 12.11.1996. The conduct of a plaintiff is
very crucial in a suit for specific performance. A person who
issues a legal notice on 12.11.1996 claiming readiness and
willingness, but who institutes a suit only on 13.10.1999 and that
too only with a prayer for a mandatory injunction carrying a
fixed court fee relatable only to the said relief, will not be entitled
to the discretionary relief of specific performance.
15. In the case of T.R.Murugesan v. S.Balakrishnan and Others
reported in 2018 6 CTC 56, particularly paragraphs 30, 34 and 35 were
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relied on which are held as follows:
“30. Even assuming that time is not the essence of the contract,
under Section 16(c) of the Specific Relief Act, the plaintiff must be
shown to have been ready and willing to perform the contract
right from the date of the agreement till date of the filing of the
suit. The agreement was entered into on 05.02.2007, it fixes the
outer time limit for payment of sale consideration as 10.04.2007.
It does not enable any extension of time, though the plaintiff
would alleged that he has been demanding performance, the first
written demand on his side was by way of Ex.A2 legal notice
dated 11.07.2007 i.e. 3 months after the time fixed for
performance of the contract. A reply notice is sent on 27.07.2007,
the suit is filed on 02.11.2007, nearly 3 months after the receipt of
the reply. There is no explanation whatsoever for the delay of
three months, after the receipt of the reply notice.
34. Now, let us examine the case of the plaintiff in the light of the
law declared by the Honble Supreme Court. Ex.A1 agreement was
entered into on 05.02.2007 and it provided for payment of entire
balance of sale consideration on or before 10.04.2007.
Admittedly, the plaintiff has paid a sum of Rs.2,00,000/- on the
date of the agreement and further a sum of Rs.3,00,000/- on
27.02.2007, thereafter, the plaintiff has not done anything to show
that he was ready and willing to perform his part of the contract,
till he issued the legal notice under Ex.A2 on 11.07.2007. For
nearly 3 months from the last date fixed for performance of the
contract, namely 10.04.2007, the plaintiff has remained silent.
Even though he would claim that he had approached the
defendant seeking execution of the sale deed, the said claim was
not supported by any proof. On receipt of the legal notice, the 1st
defendant had sent reply on 27.07.2007 expressly stating that the
plaintiff was not ready and willing to perform his part of the
contract and he had no resources to pay the balance of sale
consideration.
35. The plaintiff chose to wait for another 3 months to file the suit
on 02.11.2007, this sustained inaction on the part of the plaintiff
would definitely lead to an inference of the plaintiff was not ready
and willing to perform his part of the contract. As pointed out by
the Honble Supreme court in various decisions, cited supra, the
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plaintiff must not only prove his readiness, he should also
establish willingness. The proof affidavit of the plaintiff is totally
lacking in particulars of the demands made by the plaintiff
seeking execution of sale deed and offering to pay the sale
consideration.
Mere proof of sale agreement based on the registration, the
plaintiff cannot satisfy the conscious of the Court to believe her
evidence to prove the truth behind the suit sale agreement. Proof
of signature of Defendant-1, by examining the witness, the
execution cannot be inferred. There must be evidence to show
that Ex.A1 is made out of free consent of parties and there must
be a lawful consideration. Only when the plaintiff has
established the twin requirements of consensus ad idem between
the parties and a valuable consideration, then the agreement can
be termed as a valid contract.”
16. In support of this contention, the learned Counsel for the Appellant
relied on the reported decision in the case of M.Jayaprakash Narayanan v.
Santhammal and Others reported in 2018(1) CTC 701, particularly to
paragraphs 11 and 12, wherein it is held as follows:
“11. Yet another strong circumstance available in this case makes
Ex.A1 is more doubtful. The main contention of the plaintiff that
as per the terms agreed in Ex.A1, the defendants 1 to 3 agreed to
execute the sale in favour of the plaintiff or his nominee.
Accordingly, the defendants 1 to 3 have sold 17 acres and odd at
the instance of the plaintiff to his sister-in-law on 30.11.2007 i.e.
the very next day of execution of Ex.A1. Ex.A17 sale deed in
respect of sale of 17 acres and odd in favour of the plaintiff’s
sister-in- law by the defendants 1 to 3 when carefully scanned,
infact, stamp papers for said sale was purchased on 28.11.2007
even much prior to the alleged agreement came into existence.
These facts infact create serious doubt about the plaintiff’s case
and about the existence of agreement. If really the properties22/55
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S.A.No.754 of 2010were sold to plaintiff’s sister-in-law only on the basis of Ex.A1,
stamp papers for the sale deed dated 30.11.2007 should have
been puchased only subsequent to the alleged agreement Ex.A1.
Whereas the endorsement in Ex.A17 clearly shows that stamp
papers were purchased even much before the Ex.A1 agreement.
Thus, all the facts creates serious doubt about Ex.A1. Admittedly,
17 acres and odd sold to the plaintiff’s sister-in-law as could be
seen under Ex.A17. It is also admitted case that the purchaser
under Ex.A17 namely, the plaintiff’s sister-in-law and defendants
1 to 3 have also filed a suit for bare injunction against the third
party in O.S.No.150 of 2008 in the year 2008 itself. These
admitted facts infact clearly probabilise the defence theory that
certain documents were handed over to the plaintiff’s sister-in-
law, who was joined in the suit O.S.No.150 of 2008 as against
one Esakki muthu. The said suit is also decreed merely on the
basis of the admission made by one of the defendants. Possibility
of handing over the documents cannot be ruled out. Similarly, the
plaintiff’s sister-in-law has apparently in dominate position at the
relevant time when she has purchased the property from the
defendants 1 to 3. The possibility of retaining the documents
under the guise of the suit is also cannot be ruled out. All these
clearly probabilise the defence theory that the original
documents relating to the title to the properties came into
possession of the plaintiff only on the above circumstances.
Therefore, we are constrained to hold that merely because the
documents namely some of the title deed relating to the suit
properties came into the possession of the plaintiff that itself
cannot be sufficient for alleged execution of the Ex.A1 agreement.
Though PW2 has supported the plaintiff in chief examination, his
cross-examination has clearly shows that his evidence his totally
unreliable. Infact, he has stated in his evidence that he has only
attested the document alone, whereas he also stood as witness in
Ex.A17. PW2 is involved in real estate business. His evidence
clearly indicate that he is only an agent of PW1. Therefore merely
because PW1 and PW2 have stated above the execution of
document, taking into consideration the totality of the
circumstances as discussed above, we are constrained to hold
that the evidence of PW1 and PW2 does not satisfy the conscious
of this Court to believe their evidence to presume the execution of
Ex.A1 agreement, particularly the alleged consideration of
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Rs.40,00,000/- on the date of agreement is not been established at
all. Therefore, mere signature of the parties were established on
the basis of some interested witnesses of the parties, who wants to
enforce the so called contract, in respect of the huge property, the
execution cannot be infered merely on the basis of such witnesses,
there must be evidence to show that Ex.A1 is made out of free
consent of parties and there is a lawful consideration in the
above agreement. Only when the plaintiff established that there
was a conseus ad idem between the parties and a valuable
consideration, then the above contract can be termed as a valid
contract capable of enforcing before the Court of law. When the
two elements namely, the free consent and lawful consideration
are absent in the document. Such document cannot be considered
for lawful consideration in the eye of law. Therefore, we are
constrained to hold that Ex.A1 is not established as a true
document. Accordingly, this point is answered.
12. A person seeking equitable relief must show his readiness and
willingness from the inception of contract till the contract
culminated into sale deed. Ready and willingness is a continuous
process must be present through out the period of contract.
Readiness is the capacity of a person to pay the remaining
consideration. Willingness is a mental attitude to perform the
part of his obligation. When both elements namely readiness and
willingness are established by the plaintiff, then only the relief of
specific performance can be granted. Though plaintiff in his
plaint at paragraph 7 has stated that he was ready and willing to
perform his part of the contract absolutely there is no pleading in
the entire pleadings with regard to the nature of his performance
of contract. Ready and willingness not only to be pleaded but
also to be proved before the Court of law. Though the time has
specified in the agreement to conclude the sale on or before
25.05.2008, the remaining sale consideration or part of the sale
consideration has not been tendered by the plaintiff at any point
of time. Nothing available even in the pleadings even to infer that
any such attempt whatsoever made by the plaintiff in that aspect.
It is further to be noted that having entered into the alleged
agreement dated 29.11.2007, the plaintiff has issued only
publication on 16.04.2009. Till such time he has not taken any
steps to perform his part of obligation. PW1’s oral and
documentary evidence clearly shows that he was also aware of
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the fact that item Nos. 6 to 8 of the I item of the suit property was
sold to the fourth defendant on 05.05.2008. Even then, he
remained mute spectator, without performing any of the contract,
whereas for the first time, he has issued a publication on
16.04.2009, which is marked as Ex.A12. Ex.A12 is only
publication to the general Public not to deal with the properties.
It is to be noted that Ex.A12 was issued in the year 2009. Even in
the above advertisement the alleged advance amount of
Rs.40,00,000/- stated to have been given to the defendants 1 to 3
has not found place. Further, Ex.A12, is only a warning to the
Public not to deal with the properties and nothing available in
Ex.A12 to infer the readiness and willingness on the part of the
plaintiff. The above publication also replied by the defendants
under Ex.A13. Again, rejoinder was given wherein the plaintiff
first time introduced in the rejoinder about the original
documents said to have been handed over to the plaintiff on the
date of agreement and the rejoinder also silent about the advance
amount. Even in the above rejoinder, the plaintiff has never
expressed ready and willingness to perform his part of contract.
Thereafter, he filed the suit straight away on 29.09.2010. It is to
be noted that as per Ex.A1, the alleged agreement, time stipulated
was on or before 25.05.2008. It is to be noted that even though as
far as immovable property is concerned time is not an essence of
contract, when specific time specifically agreed between the
parties the same makes the time as an essence of contract and
cannot be ignored altogether. Though the plaintiff has made an
attempt to show as if the defendants alone caused delay and not
making marketable title and failed to demarcate the properties
and identify the properties. Such stand of the plaintiff is nothing
but an attempt to overcome the delay. If really the plaintiff was
intended to purchase the property after proper identification and
demarcation or after eviction of the encroachers, there was no
reason as to why he has directed the defendants 1 to 3 to sell the
property to his sister-in-law, the very next day of the alleged
agreement. This fact also creates serious doubt about the
plaintiff’s contention. Even assuming that there are conditions
agreed upon by the defendants to make the marketable title and
they failed to do so, that itself will not relieve the plaintiff from
taking some steps on his part. What would be the conduct of the
parties who really intended to purchase the properties? Their
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conduct would be to take minimum steps to demarcate the
properties, etc., In this case absolutely there is no evidence
whatsoever on record to show that the plaintiff has taken steps on
his part. Therefore the readiness and willingness cannot be
infered in this case. It is further to be noted that the plaintiff in
his entire chief examination he is silent about his readiness and
willingness. In the entire evidence, there is no piece of evidence
even to infer readiness and willingness on his part. As already
stated readiness and willingness must be established from the
very inception and it is a continuous process. What are the
sources for paying remaining consideration also absolutely there
is no evidence. His capacity to mobilise the funds also not been
established. All these facts clearly show that the plaintiff has not
at all ready and willing to perform his contract. Accordingly we
hold that the plaintiff is not entitled to specific performance at
all.
17. Sections 91 and 92 of the Evidence Act is not a bar for Defendant-1
to let in oral evidence. The Appellant herein is not attempting to contend that
the recitals contained in Ex.A-1 is to be varied or that the evidence let in on
her side was to contradict the terms contained therein. According to
Defendant-1, the entire evidence let in, both oral and documentary, are only to
demonstrate that, in spite the existence of Ex.A-1, it has to be held that the
parties had a different agreement altogether and Ex.A-1 was never intended to
be acted upon.
18. In support of this contention, Kamireddi Sattiaraju and another v.
Kandamuri Boolaeswari reported in 2007-1-L.W-309 was relied upon, in
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which it is held as follows:
At the outset, it will have to be stated that existence of Ex.
A-1 agreement was never in dispute. As far as application
of Section 92 of the Indian Evidence Act is concerned, by virtue
of Section 91, and having regard to the existence of Ex. A-1
agreement, the terms contained in Ex. A-1 are to be considered
without any reference to any other oral evidence insofar as it
related to the terms contained therein. In that respect, Sections
91 and 92 of the Indian Evidence Act are inter-dependent. In the
light of the evidence available on record, both oral and
documentary, as well as the application of Section 92 of the
Indian Evidence Act, there is no scope to permit the appellants to
contradict, vary or subtract the terms contained in Ex. A-1
agreement. Therefore, even taking Ex. A-1 agreement on its face
value, what has to be considered is whether the contention put
forward on behalf of the appellants that it was never intended to
be acted upon, requires consideration. On this aspect, we find
that the decisions relied on by learned Counsel for the appellants
Mr. R. Subramanian as (supra) and (supra) fully support his
contention.
15. In the judgment , in paragraph 22, the Supreme Court has
stated the legal position as regards the substantive part of Section
92 of the Indian Evidence Act in the following words:
22. This Court in Gangabai v. Chhabubai and Ishwar Dass Jain
v. Sohan Lal with reference to Section 92(1) held that it is
permissible to a party to a deed to contend that the deed was not
intended to be acted upon but was only a sham document. The
bar arises only when the document is relied upon and its terms
are sought to be varied and contradicted. Oral evidence is
admissible to show that document executed was never intended to
operate as an agreement but that some other agreement
altogether, not recorded in the document, was entered into
between the parties.
16. In the decision, the Supreme Court has held as under in
paragraph 9:
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S.A.No.754 of 2010An enquiry into reality of transaction is not excluded merely by
availability of writing reciting the transaction. Tyagaraja
Mudaliyar v. Vedathanni AIR 1936 PC 70 : 64 IA 126 is an
authority for the proposition that the oral evidence in departure
from the terms of a written deed is admissible to show that what
is mentioned in the deed was not the real transaction between the
parties but it was something different.
17. From the above ratio laid down by the Supreme Court, when
we analyse the stand of the parties, according to the appellants,
irrespective of the fact that Ex. A-1 came into being, it was
contended that the deed was never intended to be acted upon and
that it was a sham document. When the said stand is probed into
further, as held by the Supreme Court, the bar under Section 92 of
the Indian Evidence Act vis-a-vis Ex. A-1 would operate if only
the appellants attempt to rely upon Ex. A-1 agreement and
simultaneously sought to vary and contradict its terms. Such is
not the case of the appellants. The appellants are not attempting
to contend that the terms contained therein are to be varied or
that the evidence let in on their side was to contradict the terms
contained therein. According to the appellants, the entire
evidence let in both oral and documentary, was only to
demonstrate that inspite of existence of Ex. A-1, it will have to be
held that the parties had a different contract altogether and Ex.
A-1 was never intended to be acted upon. At the risk of repetition,
we state that applying the ratio laid down by the Supreme Court,
such a stand of the appellants was certainly not prohibited under
Section 92 of the Indian Evidence Act.
19. Admission made in the evidence of P.W-1 would falsify her
bonafides in a suit for specific performance. Simultaneously, Defendant-1 is
an unlettered, rustic, aged lady and not conversant with the legal issues, and
she pleads non est factum. In such event, it is for the plaintiff who was in
dominant position over Defendant-1 to prove fairness and transparency under
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Ex.A-1 as per Section 111 of the Evidence Act. She cannot take undue
advantage of the ignorance and innocence of the defendant in view of the bar
u/s. 20 of the Specific Relief Act. Section 20(1) reads that the jurisdiction to
decree specific performance is discretionary, and the Court is not bound to
grant such relief merely because it is lawful to do so. Section 20(2) of the
Specific Relief Act also empowers the Court not to exercise discretion to
decree specific performance, if
a) the terms of the agreement or conduct of the parties gives the plaintiff
an “unfair advantage’ over the defendant,
b) where the performance of the agreement would involve “some
hardship” on the defendant which she did not foresee, and
c) though the circumstances do not render the contract voidable, but
makes it “inequitable” to enforce specific performance.
20. Even though generally, time is not essence in an agreement for the
sale of immovable property, the Courts below should have taken cognizance of
the conduct of the parties, the escalation of the price of the property, and the
attempt of the plaintiff to take unfair benefit from the decree. The Hon’ble
Supreme Court AIR 2022 SC 1275 held that “the remedy provided must not
cause injustice to a party, specifically when they are not at fault. In the present
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case, three decades have passed since the agreement to sell was entered into
between the parties. Given the blemished conduct of the plaintiff in indicating
his willingness to perform the contract, we decline in any event to grant the
remedy of specific performance of the contract.” This proposition of law is
squarely applicable to the facts and circumstances of the case.
21. Finally, as on the date of the agreement (dated 01.03.1980),
Defendant-1 was not the absolute owner of the construction put up in and over
the suit property. As per the agreement with the Tamil Nadu Housing Board/
Defendant-2, the Appellant/Defendant-1 could acquire absolute title over the
building only after payment of the entire installment between 01.07.1976 and
09.03.1996. Until the entire dues to TNHB is settled, Ex.A-1 is a void
agreement within the meaning of Section 23 of the Indian Contract Act.
Therefore, Defendant-1 was legally prohibited from entering into a suit sale
agreement with the Plaintiff. Thus, the suit sale agreement is hit by Section 23
of the Contract Act.
22. Learned Senior Counsel A.L.Gandhimathi for M/s.C.T.Murugappan
for Respondent-1, Plaintiff before the learned District Munsif submitted her
arguments as follows:
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23. As per the submission of the learned Counsel for the Respondent,
Respondent in this Second Appeal is the Plaintiff before the learned District
Munsif, Coimbatore. It is the case of the Plaintiff that the Defendant-1
borrowed Rs.3,900/- from the Plaintiff in order to make initial payment
regarding purchase of the suit property after allotment in the year 1976. The
Defendant-1 had handed over possession to the Plaintiff on 01.03.1980
through a registered sale agreement entered into between the Plaintiff and the
Defendant-1.
24. On 01.03.1980, at the time of entering the sale agreement, the sale
price was fixed at Rs.16,000/-. On the date of the agreement, the Defendant-1
received Rs.8,000/- and agreed for the balance Rs.8000/- to be paid by the
Plaintiff to the Defendant-2/Tamil Nadu Housing Board in monthly
instalments of Rs.83/- per month. As per the sale agreement upon payment of
all the instalments to the Tamil Nadu Housing Board and after the final
payment, when the Tamil Nadu Housing Board released the property in favour
of the Defendant-1, Defendant-1 would obtain the release from Defendant-2
and then execute the sale deed in favour of the Plaintiff. Accordingly, the
Plaintiff had paid the instalments without any default till June 1996. The last
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instalment under Ex.A-2 series was paid in June 1986. Thereafter, the Plaintiff
issued notice on 17.08.1996 under Ex.A-9. After receipt of the same, a copy of
Ex.A-9 was also sent to Defendant-2, Tamil Nadu Housing Board which was
received under Ex.A-11. After receipt of the notice dated 17.08.1996 under
Ex.A-9, since Defendant-1 failed to cooperate to execute the sale deed, the
Plaintiff approached the Defendant-1 and the Defendant-1 demanded a further
sum of Rs.25,000/-. The Plaintiff had fulfilled her part of the contract and
obligation as contemplated in the sale agreement deed dated 01.03.1980. Since
the Defendant-1 had failed to cooperate, the suit was filed for the specific
performance of contract. The Defendant-1 resisted the suit. The Defendant-1
admitted execution of the sale agreement and also admitted receipt of sale
consideration of Rs.8,000/-, but took a stand that the Plaintiff obtained thumb
impression of the Defendant-1 on some unwritten stamp papers during
February 1980 and subsequently, she was informed that an agreement of
permissive occupation was being reduced into writing. Only recently she came
to know that the Plaintiff had fraudulently created the sale agreement as if it
was executed by the Defendant-1. The contention of the Defendant is that the
sale agreement is neither true nor valid though signed by the Defendant.
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25. It is the claim of the Defendant-1 that the Plaintiff is in permissive
occupation of the suit property and the suit is liable to be dismissed. The
Plaintiff had filed the suit in O.S.No.515 of 1997 before the learned Principal
District Munsif, Coimbatore. Further, the Defendant-1 had filed a suit in
O.S.No.1617 of 1995 seeking declaration that she is the absolute owner of the
suit property. However the suit was subsequently dismissed for default and the
same has not been prosecuted which was marked during trial in O.S.No.515 of
1997 as Ex.A-12. The Plaintiff had examined herself as P.W-1 and marked
documents under Ex.A-1 to Ex.A-13. The Defendant had examined herself as
D.W-1. The staff of the Defendant-2 was examined as D.W-2. The daughter of
the Defendant-1 was examined as D.W-3. The documents relied by the
Defendant was marked as Ex.B-1 The Ex.B-1 is the copy of the legal notice
issued by the Defendant-1 to the Plaintiff. Ex.B-2 is the reply from the
Plaintiff to the notice under Ex.B-1 through the evidence of D.W-2. Ex.X-1
and Ex.X-2 were marked. Ex.X-1 is the accounts regarding copy of the
accounts regarding payment of the monthly instalment towards the
construction cost by the Defendant-1 to the Defendant-2. Ex.X-2 is the copy of
the sale deed dated 10.04.1974 in favour of the Defendant-1. After full trial, on
appreciation of evidence, the learned Principal District Munsif, Coimbatore by
judgment and decree dated 01.04.2004 had arrived at a finding that the
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Defendant had executed the sale agreement and that the Defendant-1 had
voluntarily affixed her thumb impression in the sale agreement and the same
had also been admitted by her. There cannot be a contrary intervention by the
party as she has consciously signed the registered sale agreement. Further it
had been made clear from the evidence and the document that only in June
1996, the instalments were finally paid and thereafter the Plaintiff had issued a
notice and filed a suit within a period of three years. Hence the suit was
decreed. The Defendant-1 filed Appeal in A.S.No.5 of 2005.
26. The learned Principal Sub Judge, Coimbatore, after hearing the
arguments of the Defendant before the trial Court as Appellant and the learned
Counsel for the Plaintiff as Respondent by judgment in A.S.No.5 of 2005 by
judgment dated 29.12.2009 dismissed the Appeal, thereby confirmed the
judgment and decree of the learned Principal District Munsif in O.S.No.515 of
1997 on independent assessment of the evidence before the learned Principal
District Munsif, Coimbatore, the learned Principal Sub Judge, Coimbatore had
confirmed the decree observing that Ex.A-1 which is a registered document
and there is presumption under Section 114(e) of the Indian Evidence Act and
there are no reasons to interfere with the findings of the trial Court, thereby the
Appeal was dismissed.
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27. The learned Principal Sub Judge had observed that the Defendant-1
had agreed that she had affixed her thumb impression in the registered sale
agreement. The evidence of the Defendant-1 that it was only an agreement for
permissive occupation was rejected. The claim of the Defendant-1 in the
written statement is barred under Sections 91 and 92 of the Indian Evidence
Act. Unless fraud or coercion and undue influence had been proved, the
written contract cannot be denied by oral evidence. In spite of having
knowledge of the agreement and after filing the suit for declaration, the
Defendant-1 had not taken any steps to prove that it was only an agreement for
permissive occupation. The question of readiness and willingness is not a
mathematical formula. Both the trial Court as well as the Appellate Court had
gone into in detail with regard to the conduct of the parties. It is very clearly
proved by the documents under Ex.A-2 series that the last instalment was paid
in June 1996. The original passbook under Ex.A-6 had been filed by the
Plaintiff and the recitals in the sale agreement clearly provides that after the
amounts are paid to Tamil Nadu Housing Board, the Defendant-1 will get
proper release and then execute the sale deed. Hence as per the second limb of
Article 54 of the Limitation Act, the suit is well within limitation.
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28. Further, the Plaintiff had proved her readiness and willingness with
regard to the agreement. The learned Senior Counsel for the Respondent
(Plaintiff before the learned Principal District Munsif) relied on the reported
decision of the Honourable Supreme Court reported in the case of Motilal
Jain v. Ramdasi Devi (Smt) and Others reported in 2000 (6) SCC 420,
particularly to Paragraphs 4, 7 and 9 which are held as follows:-
“4. Mr.N.R.Choudhary, learned Counsel for the
Respondents, contended that paras 6 and 11 of the plaint do not
conform to Forms 47 and 48 of the First Schedule of the Code of
Civil Procedure and relied upon the decisions of this Court in
Ouseph Varghese v. Joseph Aley and Abdul Khader Rowther v.
P.K.Sara Bai. He argued that the trial Court ought to have
framed an issue regarding readiness and willingness of the
appellant but it failed to do so, therefore, the decree of the trial
Court was rightly set aside by the High Court. He further
contended that the conduct of the Appellant whose wife is denied
by the Defendant, did not justify granting of discretionary relief
of specific performance and the High Court had rightly denied
the same.
7. The other contention which found favour with the High
Court, is that plaint averments do not show that the plaintiff was
ready and willing to perform his part of the contract and at any
rate there is no evidence on record to prove it. Mr. Choudhary
developed that contention placing reliance on the decision in
Varghese case. In that case, the plaintiff pleaded an oral contract
for sale of the suit property. The defendant denied the alleged
oral agreement and pleaded a different agreement in regard to
which the plaintiff neither amended his plaint nor filed
subsequent pleading and it was in that context that this Court
pointed out that the pleading in specific performance should
conform to Forms 47 and 48 of the First Schedule of the Code of
Civil Procedure. That view was followed in Abdul Khader Case.
9. That decision was relied upon by a three-Judge Bench of
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S.A.No.754 of 2010this Court in Syed Dastagir case wherein it was held that in
construing a plea in any pleading, courts must keep in mind that
a plea is not an expression of art and science but an expression
through words to place fact and law of one’s case for a relief. It
is pointed out that in India most of the pleas are drafted by the
true spirit behind a plea it should be read as a whole and to test
whether the plaintiff has performed his obligations, one has to
see the pith and substance of the plea. It was observed:
“unless a statute specifically requires a plea to be in any
particular form, it can be in any form. No specific phraseology
or language is required to take such a plea. The language in
Section 16(c) of the Specific Relief Act, 1963 does not require any
specific phraseology but only that the Plaintiff must aver that he
has performed or has always been and is willing to perform his
part of the contract. So the compliance of ‘readiness and
willingness’ has to be in spirit and substance and not in letter and
form.”It is thus clear that an averment of readiness and willingness in
the plaint is not a mathematical formula which should only be in
specific words. If the averments in the plaint as a whole do
clearly indicate the readiness and willingness of the plaintiff to
fulfil his part of the obligations under the contract which is the
subject matter of the suit, the fact that, they are differently
worded will not militate against the readiness and willingness of
the plaintiff in a suit for specific performance of contract for sale.
29. In the case of Sughar Singh v. Hari Singh (Dead) through Legal
Rep , reported in 2021 (17) SCC 705 (Para 28 and 29),
“28. Now, so far as the finding recorded by the High Court and
the observations made by the High court on Section 20 the Act and the
observation that even if the agreement is found to be duly executed and
the plaintiff is found to be ready and willing to perform his part of the
Agreement, grant of decree of specific performance is not automatic and
it is a discretionary relief is concerned, the same cannot be accepted
and/or approved. In such a case, many a times it would be giving a
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premium to the dishonest conduct on the part of the defendant /
executant of the agreement to sell. Even the discretion under Section 20
of the Act is required to be exercised judiciously, soundly and reasonably.
The plaintiff cannot be punished by refusing the relief of specific
performance despite the fact that the execution of the agreement to sell
in his favour has been established and proved and that he is found to be
always ready and willing to perform his part of the contract. Not to
grant the decree of specific performance despite the execution of the
agreement to sell is proved; part sale consideration is proved and the
plaintiff is always ready and willing to perform his part of the contract
would encourage the dishonesty. In such a situation, the balance should
tilt in favour of the plaintiff rather than in favour of the defendant
executant of the agreement to sell, while exercising the discretion
judiciously.
29. For the aforesaid, even amendment to the Specific Relief Act, 1963
by which Section 10(a) has been inserted, though may not be applicable
retrospectively but can be a guide on the discretionary relief. Now, the
legislature has also thought it to insert Section 10(a) and now the
specific performance is no longer a discretionary relief. As such the
question whether the said provision would be applicable retrospectively
or not and/or should be made applicable to all pending proceedings
including appeals is kept open. However, at the same time, as observed
herein above, the same can be a guide.”
30. It is the submission of the learned Senior Counsel A.L.Gandhimathi
that time is not the essence of contract. It has been clearly agreed that after the
instalments has been paid, the Defendant-1 will execute the sale deed and once
the last instalment is paid, the Plaintiff had issued a notice and thereafter had
approached the Defendant-1 seeking execution of the sale deed and release of
the documents from the Tamil Nadu Housing Board. Since the Defendant-1
had not cooperated with the same, the suit in O.S.No.515 of 1997 had been
filed immediately. There is no question of any escalation of pricing in the
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present case. Since the entire instalment had been paid by the Plaintiff as per
the sale agreement. The contention of the Appellant (Plaintiff before the
learned Principal District Munsif, that Ex.A-1 is a void agreement within the
meaning of Section 23 of the Contract Act is incorrect. The agreement itself is
that the entire instalments had to be paid by the Plaintiff and thereafter the
Defendant-1 should get the release from the Tamil Nadu Housing Board and
thereafter execute the sale deed. Therefore there is no legal prohibition against
the Defendant-1 from entering into a sale agreement with the Plaintiff and the
sale agreement is not hit by Section 23 of the Contract Act. Both the Courts
had arrived on a factual finding in favour of the Plaintiff. There is no dispute
on facts. Both the Courts below have concurrently found that the Plaintiff was
ready and willing to perform the contract. The Plaintiff had performed her part
of the agreement. It is only on the part of the Defendant-1 to execute the sale
deed. The obligation on the part of the Plaintiff had already been completed. It
is only on the part of the Defendant-1 to get release from the Tamil Nadu
Housing Board the Defendant-2 and execute the sale deed. As such there is no
question of any readiness and willingness being left unperformed by the
Plaintiff. The suit had rightly been decreed. Therefore this Second Appeal has
no merit and is to be dismissed.
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31. The Second Appeal had been admitted raising the following
substantial question of law:
Whether the Courts below are right in decreeing the suit for
specific performance without contesting the issue of readiness
and willingness?
Heard the learned Counsel for the Appellant and the learned Counsel for
the Respondents. Perused the records in O.S.No.515 of 1997 on the file of the
learned Principal District Munsif, Coimbatore and the A.S.No.5 of 2005 on the
file of the learned Principal Sub Judge, Coimbatore.
32. The parties in this Second Appeal are herein after referred as per the
their status before the learned District Munsif, Coimbatore as Plaintiff and
Defendant.
33. The Appellant in this Second Appeal is the Defendant-1 before the
learned Principal District Munsif, Coimbatore in O.S.No.515 of 1997. The
Respondent is the Plaintiff who had instituted the suit for specific performance
of contract for sale of the property in O.S.No.515 of 1997. Here afterwards, the
Appellant will be referred as Defendant-1 and the Respondent will be referred
as Plaintiff.
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34. On perusal of the judgement of the learned Principal District Munsif,
it is found that no issue had been raised regarding readiness and willingness of
the Plaintiff to perform her part of the contract.
35. On perusal of the plaint averments in O.S.No.515 of 1997, the
Plaintiff had in paragraph 7 stated that the Plaintiff had fulfilled her part of the
act and obligation as contemplated in the sale agreement deed dated
01.03.1980. The Defendant-1 has to cooperate with the Plaintiff to secure the
title deed from the Defendant-2 to the name of the Plaintiff and also is bound
to repay the excess amount paid by the Plaintiff. Since the Defendant-1
refused to comply, the suit was filed for specific performance and recovery of
the amount. The learned Principal District Munsif failed to frame issue
regarding the same. The Defendant-1 in the written statement clearly stated
that she had never borrowed Rs.3,900/- from the Plaintiff in order to make
initial payment regarding purchase of the schedule mentioned property. She
had asserted that she is the absolute owner of the suit property allotted by the
Defendant-2 under registered sale deed vide Document No.1400/1974 on the
file of the Sub Registrar, Coimbatore and she had deposited the sale deed to
the Tamil Nadu Housing Board under an agreement for construction of house
in the vacant site. The Defendant-2 after the said construction of the house had
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handed over possession to the Defendant-1 for her own use and occupation. It
was agreed that Rs.83/- per month for a period of 20 years would be paid by
the Defendant-1 towards the construction cost payable to the Defendant-2. The
Defendant-1 have disputed the claim of the Plaintiff that she had accepted
Rs.8000/- on the date of sale agreement and agreed towards payment of
Rs.83/- per month by the Plaintiff towards the construction cost.
36. It is the contention of the Defendant-1 in the written statement that
she had permitted the Plaintiff as a permissive occupier of the suit property
and to pay Rs.83/- per month on behalf of the Defendant-1 to the Defendant-2,
Tamil Nadu Housing Board towards construction cost for 20 years. After
completion of the said amount, she had sought the Plaintiff to vacate and
handover the possession to the Defendant-1. The Defendant-1 issued legal
notice dated 30.05.1995 marked under Ex.B-1 directing the Plaintiff to hand
over vacant possession. Without replying to Ex.B-1, the Plaintiff had issued
notice under Ex.A-9, which was issued subsequent to Ex.B-1. Since the receipt
of notice, the Plaintiff had not vacated. The Defendant had filed a suit against
the Plaintiff before the learned I Additional Sub Judge, Coimbatore in
O.S.No.1617 of 1995 seeking declaration that the Defendant-1 is the absolute
owner of the property and seeking recovery of possession.
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37. The claim of the Plaintiff that she had perfected her title by adverse
possession is not maintainable It is stated in the written statement that the
Defendant-1 is an illiterate poor widow. She had executed construction
agreement with the Defendant-2 in the year 1976. The claim of the Plaintiff
that she had entered into sale agreement deed dated 01.03.1980 marked as
Ex.A-1 is an agreement registered with the Sub-Registrar.
38. In the sale agreement, which is a registered sale agreement under
Ex.A-1, it is stated that the Plaintiff had paid Rs.8,000/- on 01.03.1980 and
Plaintiff undertook to pay the monthly installments of Rs.83/- for 20 years to
the Defendant-2 and on completion of the payment in full, the Defendant-1
agreed to release the original title deed from the Defendant-2 and execute the
sale deed in favour of the Plaintiff. The sale agreement under Ex.A-1 identifies
the Plaintiffs as party on the second part and the Defendant-1 as party of the
first part. The Defendant had in her evidence reiterated the contents in the
written statement. She had admitted her thumb impression before the Sub-
Registrar. It is a clear case that the Plaintiff took her to the Sub-Registrar
Office informing her that the agreement between the Plaintiff and the
Defendant regarding permissive occupier is to be reduced into writing.
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Believing her words, she was taken to Sub-Registrar Office and no one had
informed her that it was for registering the sale agreement. Because of her
illiterate status, she was taken for a ride. Only when she caused notice to the
Plaintiff to vacate and hand over possession, she had come to know about the
sale agreement deed. Her claim is supported by the evidence of D.W-2. The
Official of the Tamil Nadu Housing Board, D.W-3, the daughter of the
Defendant-1D.W-2 had marked Ex.X-1 regarding the accounts of the Tamil
Nadu Housing Board regarding construction cost and repayment of the
monthly instalment on behalf of the Defendant-1. If the oral evidence of
Defendant-1 is to be accepted, she had permitted the Plaintiff to occupy the
house and pay the rent. Instead of paying the rent to the Defendant-1 she had
permitted the Plaintiff to pay the rent as EMI to the Tamil Nadu Housing
Board/the Defendant-2. She had handed over the Passbook to the Plaintiff and
permitted the Plaintiff to pay the EMI to the Defendant-2. When tax was
levied, it was found to be high, therefore she had requested the Plaintiff to file
appropriate petition before the Authorities concerned seeking reduction of the
house tax which was done by the husband of the Plaintiff. All the documents
such as water supply, electricity connection are all in the name of the
Defendant-1 but in the custody of the Plaintiff. She had voluntarily given it to
the Plaintiff. Therefore on the date of the agreement of sale, it is not an
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enforceable contract as per the reported decision relied by the learned Counsel
for the Defendant-1 in the case of P.M.Thangavel vs M. Ramamurthy and
others reported in CDJ 2019 MHC 3786.
39. As per the reported decision of this Court in the case of
V.Dhanasekaran and Others v. A.Krishnamurthy reported in
MANU/TN/0459/2023, the Plaintiff cannot seek relief. The Plaintiff can only
seek relief of recovery of money. The facts of the reported decision is different
wherein the Plaintiff in the reported decision undertook to clear the mortgage
loan. Here, in this case, the Plaintiff is stated to be a permissive occupier,
where instead of paying rent to the Defendant-1, the Defendant-1 directed the
Plaintiff to pay the monthly installment to the Defendant-2/Tamil Nadu
Housing Board. Therefore, she was put in a position as a permissive occupier
and the Defendant-1 had not received rent. She had handed over the passbook
for payment of the EMI to the Defendant-2. Accordingly, the Defendant-2 had
issued recitals in the name of the Defendant-1 which is in possession of the
Plaintiff. Therefore, she is only a permissive occupier and the oral contract is
treated as lease and not sale agreement. Ex.A-1 cannot be put into service by
the Plaintiff, as it is a violation of the condition of agreement between
Defendant-1 and Defendant-2/Tamil Nadu Housing Board as it is an obligation
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to help the poor people to own house and house sites and there are stipulations
that it should not be encumbered in violation of the said condition. The
Plaintiff had filed a suit seeking specific performance of contract. The claim of
the Plaintiff in the Plaint that the Plaintiff had fulfilled her part of the contract
cannot be sustained by any Court of law in the light of the specific agreement
between Defendant-1 and the Defendant-2, Tamil Nadu Housing Board.
Therefore it is an unenforceable contract as per the case of P.M.Thangavel vs
M. Ramamurthy and others reported in CDJ 2019 MHC 3786.
40. The submission of the learned Senior Counsel for the Plaintiff is that
readiness and willingness is not a mathematical formula and is not applicable
to the facts of this case in the light of the decision of P.M.Thangavel vs M.
Ramamurthy and others reported in CDJ 2019 MHC 3786. When there is
agreement pending between Defendant-1 and Defendant-2, the Defendant-1
shall not create encumbrances. The sale agreement entered into by the Plaintiff
with the Defendant-1 on 01.01.1980 even though registered is an
unenforceable contract. Merely because the sale agreement had been
registered does not give a presumption that the sale agreement is bona fide. In
the light of the reported decision in the case of P.M.Thangavel vs M.
Ramamurthy and others reported in CDJ 2019 MHC 3786, when Tamil Nadu
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Housing Board had insisted for certain conditions, during the period of such
condition, a sale agreement had been obtained from the illiterate poor widow
by the Plaintiff which cannot be accepted by any Court of law. It is an
unenforceable contract, in violation of a contract between the Tamil Nadu
Housing Board, a Statutory body with its social obligations to grant house site
to poor people. Here the economic status of the Defendant-1 was exploited by
the Plaintiff and the illiterate status of the poor widow was exploited by the
Plaintiff. There are many number of examples that the Registration
Department registers documents if the conditions of registrations are fulfilled
but that does not create bona fides on the parties to insist for its enforcement in
a Court of law. Even lands vested with the Government are also registered
under deeds with the Registration Department which has come to judicial
notice through complaints from the party who lost money to the land sharks.
Therefore, the presumption that is pressed into service under Section 114(e) of
the Indian Evidence Act claiming that the Plaintiff had voluntarily executed a
sale agreement in favour of the Plaintiff cannot be accepted and sustained by
any Court of law exercising judicial discretion. The Court has to weigh the
balance of convenience before ever granting the discretionary relief. Here, it
is a specific case of the Defendant-1 that she never had an idea to sell or part
with the property, if there is violation of condition, the Tamil Nadu Housing
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Board has the power to forfeit the property during the period of agreement
between Defendant-1 and Defendant-2. The Plaintiff had entered into an
agreement on 01.01.1980 which is unenforceable on the date of the agreement.
Therefore the Court need not consider the recitals in Ex.A-1. The presumption
under Section 92 of the Indian Evidence Act will not hold good to the facts of
this case under Ex.A-1. The evidence of the Plaintiff is as per the agreement
between Defendant-2 and Defendant-1 which is contrary to Ex.A-1. Ex.A-1
cannot be enforced as on the date of its execution i.e., on 01.01.1980.
Therefore the judgement in the case of V.Dhanasekaran and Others v.
A.Krishnamurthy reported in MANU/TN/0459/2023 is different from the facts
of the case before this Court. The reliance placed by the learned Counsel for
the Defendant-1 regarding Mortgagee and Mortgager are not applicable to the
facts of this case. The mortgage is between the Defendant-1 and the
Defendant-2. Also, the site was allotted to the Defendant-1 by the Tamil Nadu
Housing Board.
41. The reported decision in V.Dhanasekaran and Others v.
A.Krishnamurthy reported in MANU/TN/0459/2023 is applicable only
regarding Sections 92 and 93 of the Transfer of Property Act. But the
observation in the said decision that the Plaintiff is entitled to recover money
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is not applicable to the facts of this case as the Plaintiff who had been living in
the suit property constructed by the Tamil Nadu Housing Board in favour of
the Defendant-1 and had paid EMI on behalf of the Defendant-1 to the
Defendant-2 instead of paying rent to the Defendant-1. Therefore in the light
of the reported ruling in the case of V.Dhanasekaran and Others v.
A.Krishnamurthy reported in MANU/TN/0459/2023, the Plaintiff in this case
is not entitled to recovery of the money also. What had been stated by the
Plaintiff in the evidence if proved regarding over and above the dues paid to
the Tamil Nadu Housing Board, she can recover it from the Tamil Nadu
Housing Board by filing proper application through Defendant-1 otherwise she
is not entitled to it. It is to be treated as payment made towards rent thereby,
she cannot claim the same.
42. In the case of Sughar Singh v. Hari Singh (Dead) through Legal
Representatives and Others reported in (2021) 17 Supreme Court Cases 705.
Para 28 is not applicable to the facts of this case. In the light of the judgement
of this Court in the case of P.M.Thangavel vs M. Ramamurthy and others
reported in CDJ 2019 MHC 3786 when the agreement between Defendant-1
and Defendant-2 is pending with a specific condition then it should not be
encumbered creating a sale agreement in the year 1980 violating the
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conditions of the Tamil Nadu Housing Board exploiting the illiterate and poor
economic status of the Defendant-1 as on 01.01.1980. Even though it is a
registered deal, it will not give the contract the status of an enforceable
contract. Therefore the observations in para 28 of the reported ruling in the
case of Sughar Singh v. Hari Singh (Dead) through Legal Representatives
and Others reported in (2021) 17 Supreme Court Cases 705 cannot be applied
to the facts of this case before this Court. Therefore the submissions made on
behalf of the Plaintiff by the learned senior Counsel A.L.Gandhimathi is to be
rejected.
43. The submission of the learned Counsel for the Defendant-1 that the
Plaintiff had not pleaded readiness and willingness is rejected in the light of
the specific pleadings that the Plaintiff had pleaded readiness and willingness.
The reliance placed by the learned Counsel for the Defendant-1 in the reported
decision in J.P.Builders and another v. A.Ramadas Rao and another
reported in (2011) 1 Supreme Court Cases 429 will not hold good to the facts
of this case as the Plaintiff had clearly stated that she had fulfilled a part of the
contract.
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44. The reliance placed by the learned Counsel for the Defendant-1 in
the case of V.Dhanasekaran and Others v. A.Krishnamurthy reported in
MANU/TN/0459/2023, where Sections 92 and 93 of the Transfer of Property
Act is applicable to the facts of this case. The agreement is to be construed as
the Plaintiff repaying monthly instalment on behalf of Defendant-1 and having
entered into sale agreement deed under Ex.A-1 before the expiry of the period,
which attracts the decision in the case of V.Dhanasekaran and Others v.
A.Krishnamurthy reported in MANU/TN/0459/2023 which concerns an
unenforceable contract by the same rulings. In the reported decision, the
Plaintiff was granted an alternate relief of recovery of money. In this case,
there cannot be recovery of money by the Plaintiff as the Plaintiff was
permitted to reside in the house. Instead of paying the rent to the Defendant-1,
the Defendant-1 had permitted the Plaintiff to pay the EMI of Rs.83/- per
month to the Defendant-2, Tamil Nadu Housing Board. Therefore, nothing
remains to be paid to the Plaintiff.
45. On appreciation of evidence, the claim of the Defendant alone is
proved. The learned trial Judge failed to consider the evidence of the
Defendant-1 and the evidence of the Defendant witnesses 2 and 3. The learned
Principal District Munsif had considered the fact that the Plaintiff had
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executed her undertaking under Ex.A-1 by paying the dues to the Tamil Nadu
Housing Board over a period of 20 years. Ignoring the fact that she was
residing in the house and, instead of paying rent to Defendant-1, she had paid
EMI to the Tamil Nadu Housing Board on behalf of the Defendant-1, which
will not give her the right to seek specific performance of the sale agreement.
The Sale agreement was unenforceable on the date of its execution ie.,
01.01.1980. In the plaint, the Plaintiff had claimed that she had perfected her
title by adverse possession. The said claim of the Plaintiff also cannot be
accepted by any Court of law. She was a permissive occupier. She was
permitted by the Defendant-1 as a permissive occupier. She cannot claim
adverse possession which is through illegal means against the interest of the
landlord or the owner of the property right from inception. Only in such cases
if the owner of the property had not taken action to evict the trespasser, the
trespasser can claim that he had perfected his/her title by adverse possession.
The action of the trespasser shall be open to the knowledge of the owner of the
property, and when the owner of the property does not take legal action within
the specified time then the so called Trespasser/Encroacher is claimed to have
perfected his title to the property under the principle of adverse possession.
The claim of adverse possession by a person who is in possession of the
property as permissive occupier is unacceptable before any court of law as his
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S.A.No.754 of 2010
possession at the inception was by legal means. The learned Principal District
Munsif failed to consider the fact that on the date of 01.01.1980, the
Defendant-1 was restrained from entering into such deed. Therefore, the
observation by the learned Principal District Munsif that the Defendant-1’s
action is a voluntary action cannot be accepted by any Court of law as the
property was vested with Tamil Nadu Slum Clearance Board/Housing Board.
Only on completion of payment of Equal Monthly Instalment, the Defendant-1
would become the owner of the property. As on date of execution of Ex.A-1,
Defendant-1 had not become owner of the property. As on the date of Ex.A-1,
it is an unenforceable contract which cannot be enforced by the Court of law.
The learned Principal Sub Judge as Appellate Authority also failed to consider
the same.
46. The reliance placed by the learned Senior Counsel for the Plaintiff
that the suit filed by the Defendant-1 seeking declaration of title to the suit
property and for recovery of possession was dismissed for default cannot be
sustained. She has every right to restore the suit.
47. In the light of the above discussion, the Substantial Question of
Law is answered in favour of the Defendant-1 and against the Plaintiff. Both
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S.A.No.754 of 2010
the Court failed to consider the materials before the trial Court in their proper
perspective.
In the result, the Second Appeal is allowed. The decree and judgment
dated 29.12.2009 in A.S.No.5 of 2005 on the file of the learned Principal Sub
Judge, Coimbatore confirming the decree and judgment dated 01.04.2004 in
O.S.No.515 of 1997 on the file of the learned Principal District Munsif,
Coimbatore are set aside. No costs. Consequently, connected miscellaneous
petition is closed.
24.06.2025
Shl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The Principal Sub Judge,
Coimbatore.
2. The Principal District Munsif,
Coimbatore.
3. The Section Officer,
V.R. Section,
High Court Madras.
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S.A.No.754 of 2010
SATHI KUMAR SUKUMARA KURUP, J.
shl
Judgment made in
S.A.No.754 of 2010
24.06.2025
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