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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.R. LAKSHMANAN
Mrs.Bhawari Devi Acha
Versus
Mrs.Anjugam Raj and others
O.A.No.565 of 1992 in C.S.No.794 of 1992
Decided On : 23-03-1993
Based on the provided legal document, the key points are as follows:
The plaintiff (Mrs. Bhawari Devi Acha) filed a suit seeking specific performance of a sale agreement dated 17.1990, concerning a property at Rundalls Road, Madras, along with damages and other reliefs (!) (!) .
The sale agreement was made with the first defendant, who agreed to sell the property for Rs.7 lakhs and received an advance of Rs.1 lakh, with the promise to obtain probate and deliver vacant possession (!) .
The agreement included an alternative obligation: if the sale could not be completed due to probate or eviction issues, the first defendant would return the advance amount with interest. The primary obligation was the execution of the sale deed, but failure to do so would trigger the alternative obligation (!) (!) .
The first defendant contended that the property was allotted to the third defendant under a compromise decree in a probate case, and she was no longer the legal owner, thus she could not sell the property (!) .
The second defendant, husband of the first defendant and executor of the will, stated he was not the owner of the property and was not a party to the sale agreement, asserting that the agreement was invalid against him and that he had no knowledge or consent (!) .
The third defendant, who was allotted the property under the probate decree, also stated he was not a party to the sale agreement and was unaware of it. The enforceability of the agreement against him was contested, and he was not a party to the contract (!) (!) .
The court observed that the property was no longer under the control of the first defendant and that the agreement could not be specifically enforced against her or the third defendant, as they were not parties to the agreement or the current owner of the property (!) (!) .
The court noted that the agreement was in an alternative form, and since the primary obligation (sale deed execution) was impossible due to the property being allocated to the third defendant, the first defendant was directed to return the advance amount with interest. The court emphasized that the obligation to perform in the primary manner was impeded, and the alternative obligation (return of money) should be enforced (!) (!) .
The court dismissed the injunction application, vacating the interim injunction, but ordered the first defendant to deposit the advance amount of Rs.3,25,000 with interest within four weeks. The plaintiff was permitted to withdraw this amount without security, and any sale or dealing with the property by the defendants would be subject to the final outcome of the suit (!) (!) .
Overall, the court highlighted that the enforceability of the specific performance depended on the current ownership status of the property, which had changed due to the probate proceedings and the allotment to the third defendant. The case was primarily considered at this stage on the basis of the contractual obligations and the impossibility of performance, reserving final judgments for trial.
The plaintiff in the suit is the applicant herein. She has filed the above application for interim injunction restraining the respondents/ defendants from in any manner dealing with the plaint schedule properly by sale or otherwise pending disposal of the suit.
2. The plaintiff filed the present suit for the following reliefs:
(a) To execute and register a sale deed conveying the property described in the schedule to the plaint in favour of the plaintiff in terms of the agreement dated 17. 1990 and in default directing an officer of the court to execute and register the sale deed in favour of the plaintiff;
(b) To deliver possession of the suit schedule mentioned property to the plaintiff;
(c) To pay damages of Rs.20,000 to the plaintiff;
(d) To pay the cost of this suit to the plaintiff; and
(e) To grant such further or other relief to the plaintiff as may be deemed fit in the circumstances of the case.
3. Notice was ordered in this application by this Court at the first instance. However, on 21. 1993 I have granted interim injunction until further orders. The defendants/respondents have now filed counter-affidavits denying the allegations contained in the affidavit filed in support of this application. The plaintiff/applicant has also filed a reply to the same.
.4. The short facts are as follows:
.The plaintiff filed the above suit for specific performance of the contract for sale of the suit property bearing door No.88, Rundalls Road, Purasaw-alkam,Madras-7, and for damages. The 1st defendant agreed to sell the suit property for Rs.7 lakhs to the plaintiff. An agreement dated 17. 1990 has been executed by the 1st defendant in favour of the plaintiff for selling the suit property to the plaintiff. The said agreement was attested by the 1st defendant’s husband R.Raja, the 2nd defendant in the suit and by one Inderchand, friend of the plaintiffs husband. The plaintiff paid an advance of Rs.1lakh to the 1st defendant. As the property has been bequeathed to the 1st defendant under the Will dated 10. 1989 executed by her paternal aunt S.Dorai Ammal, who died on 211. 1989, the 1st defendant has undertaken to obtain probate in respect of the Will dated 10. 1989 and also deliver vacant possession of the suit property alter evicting the tenants at her cost. The 2nd defendant, husband of the 1st defendant, has been appointed as executor under the said Will and he took steps for obtaining the probate. Time for completing the sale deed was extended by three months and endorsement to that effect was made on the back of the agreement.
5. Before the expiry of the three months period, on 4. 1991, defendants 1 and 2 representing that the probate order has not been obtained and that some more time was required for obtaining the probate order and for evicting the tenants for the purpose of completing the sale transaction, sought for further extension of time and requested the plaintiff to pay a further sum of Rs.2 lakhs. The plaintiff has paid the said sum which was acknowledged by the 1st defendant as per the endorsement made on the agreement. Within a week thereafter, the 1st defendant demanded a further advance of Rs.25,000 from the plaintiff, which she paid and the said payment has also been duly acknowledged by the 1st defendant on 14. 1991.Thus, the plaintiff has paid a total advance of Rs.3,25,000 to the 1st defendant.
6. According to the plaintiff, she has always been ready and willing to pay the balance of sale consideration of Rs.3,75,000 and have the sale executed and registered in her favour at her cost in terms of the agreement. Subsequently, when the plaintiff and her husband contacted defendants 1 and 2 and enquired about the probate proceedings and the steps taken by them for the eviction of the tenants, they represented that the probate proceedings were still pending and further steps would be taken for obtaining the order after reaching a settlement with certain other persons who had raised objections. But, def
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