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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
A.Ulaganatha Reddy - Appellant
Versus
D.Nandagoppal Chetti & Others - Respondents
Second Appeal No.1352 of 1998
Decided On : 04 August 2005
specific performance - property dispute - Specific Relief Act - Section 16(c), 1996 (I) MLJ 376 - The court declined the relief of specific performance on the ground of impossibility of performing the contract by the Defendant. The suit property originally belonged to one Devathi Munirathina Chetty as his self-acquired property. The said Devathi Munirathina Chetty died on 22.01.1988, leaving four sons and three daughters. The three daughters have filed O.S.No.352/1990 for partition, which suit was decreed and a preliminary decree for partition of 3/7th share of the daughters had been passed. The lower Appellate Court had also held that the Defendants 1 to 4 had no absolute title to convey the entire suit property in favor of the Plaintiff. A plea was raised in the Courts below that the shares of the sons alone could be ordered to be conveyed, excluding the shares of the daughters. The lower appellate Court was held that that plea cannot be accepted since the same caused hardship to the Defendants and also might cause difficulty in executing the decree. No appeal has been preferred by the Plaintiff against the Judgment of Preliminary Decree for partition in O.S.No.352/1990 confirmed by the first Appellate Court in A.S.No.58/1995. Hence there is no reason to take a different view from that of the Appellate Court in declining the limited relief of specific performance regarding the shares of the sons. Both the suits have been disposed of by a common Judgment. Likewise, in the first Appellate Court, both the appeals A.S.Nos.19/1995 and 58/1995 have been disposed of by the common judgment. While so, the Plaintiff has not preferred any appeal as against the Judgment in O.S.No.352/1990. When the daughters are entitled to 3/7th share, in the absence of any appeal as against the Judgment and Decree in O.S.No.352/1990, it is not open to the Plaintiff to seek for specific performance for the entire extent of the property. As per Exs.A-1 to A-3, the Plaintiff has paid Rs.20,101/-. The Courts below have rightly decreed the alternative relief, ordering repayment of money of Rs.20,101/- to the Plaintiff. The findings and conclusions of the Courts below are in proper appreciation of the evidence. The reasoning of the Courts below is well balanced and there is no serious or substantial error warranting interference.
Fact of the Case:
The Plaintiff filed a suit for specific performance of a contract for the sale of a property. The Defendants contended that the agreement was not valid as the Plaintiff was not ready and willing to perform his part of the contract. The Defendants also raised issues regarding the ownership of the property and the authority of the Defendants to enter into the agreement. Another suit for partition and separate possession of their share was filed by the female heirs of the original owner of the property.
Finding of the Court:
The court found that the Plaintiff was not entitled to the relief of specific performance as the Defendants did not have absolute title to convey the entire suit property in favor of the Plaintiff. The court also noted that the Plaintiff had not appealed against the Judgment in the suit for partition, and therefore, could not seek specific performance for the entire extent of the property. The court decreed the alternative relief, ordering repayment of the money paid by the Plaintiff.
Issues: The issues included the validity of the agreement, the ownership of the property, the authority of the Defendants to enter into the agreement, and the entitlement of the Plaintiff to the relief of specific performance.
Ratio Decidendi: The court held that the Plaintiff was not entitled to the relief of specific performance as the Defendants did not have absolute title to convey the entire suit property in favor of the Plaintiff. The court also noted that the Plaintiff had not appealed against the Judgment in the suit for partition, and therefore, could not seek specific performance for the entire extent of the property. The court decreed the alternative relief, ordering repayment of the money paid by the Plaintiff.
Final Decision: The Judgment and Decree of the lower courts were confirmed, and the second appeal was dismissed.
This second appeal arises out of the concurrent Judgment and Decree of the Courts below :- Judgment and Decree, dated 11.12.1997, made in A.S.No.19/1995, on the file of the Principal District Judge, Chingleput, confirming the Judgment and Decree dated, 30.06.1994 made in O.S.No.166 /1988 on the file of the Subordinate Judge, Kancheepuram.
2.The facts relating to the second appeal could be briefly stated thus:-
O.S.No.106/1988 :-
The suit property was originally owned by one Devathi Munirathina Chetty, father of Defendants 1 to 4. D-5 is the son of D-1. Offering to sell the suit property to the Plaintiff for Rs.23,000/-, D-1 to D-4 have executed an Agreement of Sale on 15.07.1984 in favour of the Plaintiff (Ex.A-1). Under the said agreement, Defendants 1 to 4 have received an advance of Rs.20,101/- and agreed to receive the balance and execute the Sale Deed. On 28.11.1984, D-1 received a sum of Rs.8,000/- from the Plaintiff for himself and onbehalf of the Defendants 2 to 4 and made Ex.A-2 endorsement on the agreement. On 29.01.1985, the third Defendant had received a sum of Rs.10,000/- for himself and onbehalf of his brothers and made Ex.A-3 Endorsement. D-5 son of D-1 had also joined in Ex.A-3 endorsement. The Plaintiff was put in possession of the suit property on 29.01.1985.
3.Further case of the Plaintiff is that he has spent more than Rs.25,000/- for levelling the suit property and for laying pipelines for the purpose of irrigation. Thereafter, D-4 had collected a further sum of Rs.575/- towards the sale consideration for himself and onbehalf of other Defendants. Contrary to their earlier representation, on 30.06.1988, the Defendants 2 to 4 had issued Ex.A-4 - Notice making false allegations and repudiating the agreement. The Plaintiff has issued suitable reply (Ex.A-5) calling upon the Defendants to perform their part of the Contract and execute the registered Sale Deed. Instead of registering the Sale Deed, the Defendants 2 and 4 have issued Ex.A-6 Rejoinder. Since the Defendants have evaded compliance, the Plaintiff had filed the suit for specific performance of contract. As the alternative relief, the Plaintiff has also claimed the refund of sale consideration.
4.Admitting the execution of the Agreement, the Defendants 1 to 4 have filed the Written Statement, contending that D-1 to D-4 had no authority to receive the amount and bind the other sharers. Ex.A-3 Endorsement dated 29.01.1985 is believed to be an interpolation by tampering, regarding the possession and the alleged extension of time. The suit property is self acquired property of Devathi Munirathina Chetty, who died on 22.01.1988. He had left four sons and three daughters as his legal heirs. The Plaintiff was never ready and willing to perform his part of the contract. Since the Agreement was not executed by the original owner, the agreement is not valid. The allegations that the Plaintiff was put in possession of the suit property and that he had spent an amount of Rs.25,000/- to improve the land is denied by the Defendants.
5. O.S.No.352/1990:-
When the suit for specific performance was pending, three female heirs of Devathi Munirathina Chetty had filed this suit for partition and separate possession of their 3/7th share and for permanent injunction against the Plaintiff/Appellant herein. According to the female heirs, the suit property originally belonged to their father Devathi Munirathina Chetty, who died on 22.01.1988 leaving the Plaintiffs and the Defendants 1 to 4 as his legal heirs to succeed his estate. The Plaintiffs and the Defendants 1 to 4 are each entitled to 1/7th share. Since the Defendants 1 to 4 are not willing to give their legitimate share to the daughters, the daughters have filed the suit for partition and separate possession and also for permanent injunction against the Appellant/Plaintiff in O.S.No.166/1988.
6.The Defendants 1 to 4 have filed Written Statement (in the partition suit) conceding the claim of their sisters and denyi
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