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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. BALASUBRAMANIAN
S. Gopinathan
Versus
Mannangatti Pillai
Second Appeal No.483 of 1984
Decided On : 20-08-1997
SPECIFIC PERFORMANCE - AGREEMENT OF RECONVEYANCE - MINORITY OF DEFENDANT - AVOIDANCE OF CONTRACT - SECTION 8 OF HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - LIMITATION - SECTION 11 OF INDIAN CONTRACT ACT - INTERPRETATION OF PRINCIPLES LAID DOWN IN N. PATTAY GOUNDER V. P.L. BAPUSWAMI - Held, (i) The defendant, on receipt of Ex.A.3 notice, elected to stand by his commitment reflected in Ex.A.1 by sending a reply in Ex.A.4 starting therein that he is prepared to execute the sale deed in favour of the plaintiff on 279. Thus the contract or reconveyance, which is voidable at his instance, had lost its character of voidable nature on the defendant electing to affirm it and becomes enforceable. (ii) An election, once it has been unequivocally made whether in favour of affirmation or of recession, is determined for ever. It cannot be revived.
Fact of the Case:
The defendant sold the suit properties to the plaintiff under a registered deed of sale dated 27.70 for a consideration of Rs.20,000. The defendant himself was a minor at that time and he was represented by his father and natural guardian in that document. On the same date of sale the defendant the then minor represented by his father and natural guardian entered into an agreement of reconveyance dated 25.70 with the said Loganathan. This agreement of reconveyance is marked as Ex.A.1 in this case and the suit is laid on it. The essential condition mentioned in the agreement of reconveyance is that, if Loganathan pays a sum of Rs.20,000/- after a period of 7 years and within a period of 9 years, the purchaser would reconvey the property conveyed to him earlier by another Registered sale deed at the expenses of the agreement holder.
Finding of the Court:
The courts below were not satisfied with the evidence of D.W.1 and D.W.2. The courts below have preferred the evidence of P.W.2. and P.W.3 which appears to be for good reasons. After going through the oral evidence let in on both sides, I am in entire agreement with the conclusion of the courts below that it is not safe to rely upon the evidence of D.W.1 and D.W.2 to non-suit the plaintiff. Therefore I am of the opinion that the plaintiff had established beyond doubt that he had performed his obligation under Ex.A.1 not only on 25.79 but also even on previous dates when he approached the defendant and his father with money for getting the reconveyance deed executed.
Issues: 1. Whether the lower courts are justified in decreeing the suit for specific performance in view of the fact that the contract of reconveyance dated 25.70 is void being one entered into by a minor? 2. Whether the contract dated 25.70 entered into by the defendant as minor is enforceable in view of the fact it is contrary to the provisions of Section 11 of the Indian Contract Act? 3. Whether the lower courts are justified in their interpretation of the principles laid down in N. Pattay Gounder v. P.L. Bapuswami, 1961 (I) M.L.J. 445 ? 4. Whether the suit for specific performance laid on 16.79 after 9 years agreed dated 25.69 between the parties is maintainable in view of the decision laid down in N. Pattay Gounder v. P.L. Bapuswami, 1961(I) M.L.J.445 ?
Ratio Decidendi: 1. The defendant, on receipt of Ex.A.3 notice, elected to stand by his commitment reflected in Ex.A.1 by sending a reply in Ex.A.4 starting therein that he is prepared to execute the sale deed in favour of the plaintiff on 279. Thus the contract or reconveyance, which is voidable at his instance, had lost its character of voidable nature on the defendant electing to affirm it and becomes enforceable. 2. An election, once it has been unequivocally made whether in favour of affirmation or of recession, is determined for ever. It cannot be revived.
Final Decision: Appeal dismissed.
1. The appellant in this appeal is the defendant in O.S.No.14 of 1982, on the file of the Sub-Court, Villupuram. The respondent in this appeal is the plaintiff in that suit. In this judgment parties to this appeal are referred to in the rank in which they are described in the suit.
2. The plaintiff filed the suit O.S.No.14 of 1982 in the court of Sub-Judge, Villupuram (which was originally taken on file as O.S.No.156 of 1979 by the Sub-Court, Tindivanam) against the defendant claiming a decree for specific performance of the agreement dated 270. In fact this agreement referred to in the plaint and relied upon by the plaintiff is as an agreement for reconvenyance. This suit was decreed by the learned Subordinate Judge by judgment and decree dated 282. The defendant filed an appeal which was taken on file as A.S.No.28 of 1983 by the Additional District Judge, South Arcot, Cuddalore. The Appellate Judge by judgment and decree dated
15. 9.83 affirmed the decree of the trial judge and dismissed the appeal. In this second appeal the defendant is questioning the correctness of the Judgment of the courts below and referred to above.
3. I heard Mr.V.N. Krishna Rao learned counsel appearing for the appellant as well as Mr.V. Raghavachari, learned counsel appearing for the respondent. The facts relating to this case have been fully set out in the judgments of the courts below. Yet, for a better appreciation of the controversy at issue, I have decided to extract in this Judgment the minimum facts required as put forward by the parties.
4. One Loganathan for himself and as guardian of his minor son sold the properties forming the subject matter of the suit (hereinafter referred to as the suit properties) under a registered deed of sale dated 27. 70 for a consideration of Rs.20,000 in favour of the defendant. The defendant himself was a minor at that time and he was represented by his father and natural guardian in that document. On the same date of sale the defendant the then minor represented by his father and natural guardian entered into an agreement of reconveyance dated 25. 70 with the said Loganathan. This agreement of reconveyance is marked as Ex.A. 1 in this case and the suit is laid on it.
5. The essential condition mentioned in the agreement of reconveyance is that, if Loganathan pays a sum of Rs.20,000/- after a period of 7 years and within a period of 9 years, the purchaser would reconvey the property conveyed to him earlier by another Registered sale deed at the expenses of the agreement holder. By a registered document dated 3. 75, the agreement holder Loganathan assigned all his rights under Ex.A.1 in favour of the present plaintiff. The case of the plaintiff is that after the assignment he had been regularly approaching the defendant for getting the sale deed executed in his favour and he offered the sum of Rs.20,000 and expressed his readiness and willingness to have the sale deed executed by the defendant. However the defendant was evading. Under those circumstances the plaintiff issued a notice through his lawyer dated 5. 79 which is marked as Ex.A.3 in this case, to the defendant calling upon him to execute the sale deed. Ex.A.4 is the reply sent by the defendant through his c ounsel to the plaintiff’s counsel. Under Ex.A.4 the defendant directed the plaintiff to come over to the Sub-Registrars Office at Valavanur at 10.00 A.M. on 25. 79 with the money and the necessary stamp papers for engrossing the sale deed; that after getting the consideration he would execute the sale deed at that time. The case of the plaintiff is that he went to the Sub-Registrars Office with Rs.20,000 and the stamp papers on the day and time fixed and though he waited for the whole day, the defend ant did not come. This forced the plaintiff to send the rejoinder on
26. 5.79 itself through his counsel stating what had happened on 279. Thereafter the suit came to be filed before the Court on 16. 79 only, since the Civil Court
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