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2011 Supreme(Mad) 2706
2011 (2) MWN(Civil) 667
High Court of Judicature at Madras
G. RAJASURIA
K. Mani
Versus
M.D. Jayavel & Others
S.A.Nos.1464 & 1465 of 2010
Decided on : 10-06-2011
For the Appellant:Mr. V. Subramani, in both the SAs, Advocate.
For the Respondents:Mr. Y. Jyothish Chander, Advocate.
The main legal point established in the judgment is that unauthorised alterations to an agreement to sell render it unenforceable, and the non-registration of the agreement precludes the invocation of Section 53A of the Transfer of Property Act.
Headnote:
Specific Performance - Agreement to Sell - Specific Relief Act, Section 16(c) - Transfer of Property Act, Section 53A - Tamil Nadu Buildings (Lease and Rent Control) Act 1960 - [S.A.No.1464 of 2011] - [S.A.No.1465 of 2011] - 17(1-A) of the Registration Act 1908 - Ex.B1 agreement to sell was found to be materially and unauthorisedly altered, making it unenforceable. Section 53A of the Transfer of Property Act could not be invoked due to non-registration of the agreement. The possession of the appellant did not automatically convert into that of an agreement holder. The Tamil Nadu Buildings (Lease and Rent Control) Act was found not applicable to the case.
Fact of the Case:
The appellant filed a suit for specific performance of an agreement to sell, while the respondents filed a suit for eviction and recovery of possession. The trial Court dismissed the appellant's suit and decreed the suit of the respondents. The appellant appealed against these judgments and decrees.
Finding of the Court:
The Court found that the agreement to sell was materially and unauthorisedly altered, rendering it unenforceable. Section 53A of the Transfer of Property Act could not be invoked due to non-registration of the agreement. The possession of the appellant did not automatically convert into that of an agreement holder. The Tamil Nadu Buildings (Lease and Rent Control) Act was found not applicable to the case.
Issues: The issues included the validity of the alteration of the agreement to sell, the applicability of Section 53A of the Transfer of Property Act, and the applicability of the Tamil Nadu Buildings (Lease and Rent Control) Act.
Ratio Decidendi: The Court held that the unauthorised alterations to the agreement to sell rendered it unenforceable. The non-registration of the agreement precluded the invocation of Section 53A of the Transfer of Property Act. The possession of the appellant did not automatically convert into that of an agreement holder. The Tamil Nadu Buildings (Lease and Rent Control) Act was found not applicable to the case.
Final Decision: The second appeals were dismissed, and the sale consideration under the agreement to sell deposited in Court by the appellant was ordered to be refunded. No costs were awarded.
1. These second appeals are focussed by K.Mani-the plaintiff in O.S.No.104 of 2005 and defendant in O.S.No.91 of 2007, animadverting upon the judgement and decrees dated 31.8.2010 passed in A.S.Nos.1 and 13 of 2010 by the District Judge, No.II, Kancheepuram, confirming the dismissal decree dated 18.11.2008 passed by the Subordinate Judge, Kancheepuram, in O.S.No.104 of 2005 for specific performance filed by the appellant herein and also in confirming the decreeing of the suit O.S.No.91 of 2007 for eviction and for recovery of possession filed by the respondents herein.
2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation, avoiding discursive delineation, of the relevant facts absolutely necessary and germane for the disposal of these second appeals, would run thus:
(i) The appellant herein/Mani filed the suit O.S.No.104 of 2005 for specific performance of an agreement to sell, with the following prayer:
"a) to direct the defendants to execute and register the sale deed in respect of the suit property in favour of the plaintiff at his costs after receipt of the balance of sale consideration of Rs.2,78,999/- within a time to be fixed by this Court."
(extracted as such)
(ii) The respondents herein filed the written statement resisting the said suit.
(iii) In turn, the respondents herein, namely, Jayavel and 7 others, as plaintiffs filed the suit O.S.No.91 of 2007 for evicting the appellant herein/Mani on the ground that the tenancy in favour of Mani was terminated by the plaintiffs/landlords and that he should vacate and hand over possession.
(iv) The following are the reliefs found set out in O.S.No.91 of 2007:
"to evict the defendant from the suit property and to order recovery of possession of the same in favour of the plaintiffs, directing to pay a sum of Rs.6,600/- as the arrears of rents for the period from 1.2.2002 to 30.9.2004 in favour of the plaintiffs, directing an enquiry for determination of the mesne profits for the unlawful use and occupation of the suit property by the defendant from the date of the suit at the rate of Rs.500/- per month till delivery of possession in favour of the plaintiffs and for costs of the suit."
(extracted as such)
(v) Written statement was filed by the appellant/Mani resisting the suit.
(vi) A joint trial was conducted by the trial Court, after framing issues.
(vii) The first plaintiff in O.S.No.91 of 2007 examined himself as P.W.1 and marked Exs.A1 to A13. Mani/the appellant herein examined himself as D.W.1 and marked Exs.B1 to B10.
(viii) Ultimately, the trial Court dismissed the suit O.S.No.104 of 2005 filed by the appellant/Mani and decreed the suit O.S.No.97 of 2007 filed by the respondents/Jayavel and others.
(ix) As against those judgement and decrees, two appeals were filed by the appellant/Mani for nothing but to be dismissed by the first appellate Court, confirming the judgement and decrees of the trial Court.
4. Being aggrieved by and dissatisfied with the said judgement and decrees, these second appeals have been filed by Mani on various grounds and also suggesting the following substantial questions of law:
S.A.No.1464 of 2011:
"(a) Whether the Courts below are correct in holding that the appellant was not ready and willing to perform his part of the contract, contrary to the provisions contained in explanation I and II of Section 16(c) of the Specific Relief Act?
(b) Whether the Courts below were correct in holding that there is material alteration in the sale agreement in Ex.B1?
(c) Whether the Courts below were correct in presuming the month as 'May' and the period stipulated as 12 in the absence of any evidence?
(d) Whether the Courts below were correct in interpreting the sale agreement Ex.B1 as materially altered as it is not reasonably possible to make an alteration of such nature, which is impossible in a computer printed out documents Ex.B1?
(e)
