S. Santha Rajagopal v. T. Sadasivam

favour of the plaintiff or from alienating the suit property to thirdparties and also obtained an order of injunction obtained against thefirst defendant, the first defendant has made an endorsement in thereverse of the sale agreement thereby agreed to extend the period forcompleting the sale from 10.07.1980 for a further period of twoyears. It was further averred that since the period was extended byanother two years, a sum of Rs.10,000/- out of the advance amount ofRs.20,000/- was returned by the first defendant to the plaintiff andan endorsement to that effect was also made in the agreement of salein which both the parties have signed. On 30.10.1982, the firstdefendant sought for another six months time till 10.01.1983 forcompleting the sale and received a sum of Rs.1,000/- towards furthersale advance for which also an endorsement was made. According tothe plaintiff, the property agreed to be sold by the first defendantis the portion of the property allotted to him in a family partitionand therefore, the first defendant, being the absolute owner, ishaving every right to sell the property to the plaintiff. 3. According to the plaintiff, inspite of repeated demands madeby her, the first defendant has not even disclosed the result of thesuit filed by his sons against him and failed to execute the saledeed in her favour. Thereafter, the plaintiff came to know that thefirst defendant colluded with his sons and filed the suit in O.S. No.905 of 1980 with a view to delay the execution of the sale deed. ThePlaintiff has also stated that she was always ready and willing toperform her part of the contract. Infact, the plaintiff was ready topay the balance sale consideration of Rs.89,000/- and get the saledeed executed in her name. 4. In view of the delay on the part of the first defendant toexecute a sale deed, the plaintiff issued a notice dated 24.12.1982through her advocate calling upon the first defendant to execute thesale deed, but the first defendant evaded and avoided to receive thenotice, hence, the suit was filed. Pending suit, the first defendantdied on 04.08.1983 leaving behind the defendants 2 to 7 as his legalheirs, therefore, they were impleaded as defendants in the suit. Itwas further pleaded by the plaintiff that the first defendant hadexecuted a registered 'Will' dated 10.04.1974 bequeathing the suitproperty in favour of the defendants 5 to 7 exclusively and thereforealso the defendants 2 to 7 were added as parties to have a bindingadjudication.5. The first defendant, even during his life time, filedwritten statement. In the written statement, the first defendantadmitted the execution of agreement of sale, which was marked asEx.A1 in favour of the plaintiff, but he would only contend that hissons have filed O.S.No. 915 of 1980 on the file of the DistrictMunsif Court, Salem, challenging his legal right over the propertystating that he is having only a life estate over the suit propertyand therefore he has no right to sell the suit property to theplaintiff. Furthermore, the suit was decreed exparte on 03.09.1982due to his non-appearance and that he was taking steps to get theexparte order set aside. He would further contend that he is theabsolute owner of the property and that the plaintiff and her husbandare tenants in the suit property. Even though he was ready toreceive the balance sale consideration and execute the sale deed, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff refused to pay the amount inspite of several requests madeby him. It is only the plaintiff who had not fulfilled the terms ofthe contract and therefore she had lost all her rights andconsequently the contract cannot be enforced. 6. After the death of the first defendant, the defendants 3 and4 have jointly filed a written statement contending interalia thatthey have obtained interim injunction restraining their father, thefirst defendant, from alienating or dispossessing the suit property.The suit was originally decreed exparte on 03.09.1982. Thereafter,an application in I.A. No. 167 of 1983 was filed for condoning thedelay in filing an application to set aside the exparte decree andanother application for setting aside the exparte decree, in whichthey have filed counter challenging the maintainability of the saidapplications. The widow and daughters of Thamanna Chettiar, thefirst defendant, have also filed I.A.Nos. 1601 and 1602 of 1983 tobring them on record. According to the defendants 3 and 4, theplaintiff is fully aware of the pendency of the litigation, whichcommenced a little time after the alleged sale agreement entered intoby the plaintiff with the first defendant and therefore the so-calledendorsement dated 05.07.1980 at the reverse of the agreement of sale,extending the time for completing the sale by two years, is illegaland not sustainable. When the legal right of the first defendantitself was questioned by filing O.S. No. 915 of 1980, the suit forspecific performance is not maintainable and the suit is hit by theprinciples of lis pendence. They would further contend that theendorsement in the agreement itself would reveal that it is anexpression of inability to convey the property to the plaintiff andin such an event, the first defendant cannot have the right to extendthe time for completing the contract. It was also specificallycontended that by virtue of the endorsement dated 05.07.1980 andreturn of part of the sale advance to the tune of Rs.10,000/-, thesale agreement has become unenforceable in law. They would furthercontend that the first defendant has no legal right to execute thesale deed free from any encumbrance in view of the pendency of O.S.No. 915 of 1980. It was further contended that the plaintiff wasnever ready and willing to pay the amount and the readiness andwillingness has not been proved by her. It was also contended thatthe second endorsement for extension of the contract made on30.06.1982 has not been endorsed in the alleged agreement of saledated 10.04.1980. The Plaintiff, having realised the impediment ingetting the sale deed due to the litigation has given up the idea ofentering into the contract and therefore the readiness andwillingness projected by her is false. They would further contendthat they have challenged the alleged partition deed dated 19.05.1961by which the first defendant has got right to execute the saleagreement on the ground that the suit property is not the property ofthe first defendant. The fact that part of the sale amount wasreturned to the plaintiff would disentitle her from seeking therelief of specific performance. 7. The defendants 2 to 4 have also filed additional writtenstatement wherein they have stated that the endorsements are allinvalid as at that time the suit filed by the sons of first defendantin O.S.No. 915 of 1980 was pending. https://hcservices.ecourts.gov.in/hcservices/

8. The fifth defendant filed separate written statement whichwas adopted by the sixth and seventh defendants. The fifth defendantwould contend that the first defendant was not the owner of theproperty and the agreement of sale is invalid and not binding onthem. It was further stated that the plaintiff has not fulfilled herpart of the contract and therefore she is not entitled for therelief. The Plaintiff's husband, who was a tenant and paying therent to the fifth defendant, had abruptly stopped paying the rent.Therefore, according to the fifth defendant, the plaintiff and thedefendants 2 to 4 are colluding with each other. The first defendantwas always ready and willing to perform his part of the contract, butthe balance sale consideration was not paid by the plaintiff andtherefore, the agreement of sale is unenforceable. It was furthercontended that if the suit is to be decreed, the defendants 5 to 7alone are entitled to get the balance sale price and as per the Willexecuted by the first defendant, they are entitled to get the subjectmatter of the property.9. In the additional written statement filed by the seventhdefendant, the endorsement made on 05.07.1980 was denied and thediscrepancy relating to the date made by one of the witnesses as15.07.1980 was pointed out.10. The Plaintiff filed reply statement in regard to thediscrepancy pointed out in the additional written statement regardingthe wrong mentioning of the date by one of the witnesses in theendorsements and claimed that it is only due to inadvertence. Evenotherwise, if 15.07.1980 is taken into consideration, the suit is notbarred by limitation.11. Before the court below, on the side of the plaintiff, PWs 1to 3 were examined and Exs. A1 to A10 were marked. On behalf of thedefendants, DWS 1 and 2 were examined and Exs. B1 to B6 were marked.Based on the pleadings, evidence on record and the arguments made onboth sides, the court below concluded that the plaintiff is notentitled for the relief of specific performance. Even thoughalternative plea of return of the money was not sought for, since itwas admitted by both sides that amount was paid by the plaintiff, thecourt below ordered for refund of the advance amount of Rs.11,000/-with interest to the plaintiff. The Plaintiff, aggrieved by thedecree granted by the court below only to the extent of gettingrefund of the advance amount, has filed the present appeal suit.12. Heard the counsel for the parties. The points forconsideration in this appeal arei)Whether as per the endorsement dated 05.07.1980, Ex.A2, madein Ex.A1, agreement of sale, along with the refund of part of theadvance amount, will make the contract forfeited?ii)Whether the contract entered into between the parties areconcluded contract?iii)Whether the suit for specific performance is hit by theprinciples of lis pendence in view of the pendency of O.S. No. 915 of1980 filed by the sons of the first defendant? https://hcservices.ecourts.gov.in/hcservices/ iv)Whether the plaintiff is entitled for the relief of specificperformance? 13. Ms. Asha, learned counsel appearing for the plaintiffvehemently contended that as per the agreement of sale, Ex.A1 dated10.04.1980, the period of the contract was fixed at three months,which expired on 10.07.1980. The sale price fixed was Rs.1,00,000/-out of which a sum of Rs.20,000/- was paid by the plaintiff to thefirst defendant as advance. As per the recitals in the agreement ofsale, the vendor Thamanna Chettiar, the first defendant in the suit,had acquired clear title over the suit property by virtue of asettlement deed dated 17.06.1961 pursuant to which he was inpossession and enjoyment of the suit property. Therefore, the firstdefendant has a valid right and saleable interest over the suitproperty. It was further argued that before expiry of three months,the sons of the first defendant have filed O.S. No. 915 of 1980 forthe relief that the suit property belonged to them, the firstdefendant has got only life estate right and after the life time ofthe first defendant, the property would automatically devolve uponthem, hence, they have filed the suit and sought for possession ofthe property. In that suit, as early as on 14.05.1980, an interiminjunction was granted restraining the first defendant fromencumbering or alienating the suit property. Pursuant to that, thefirst defendant was prohibited from executing the sale deed in favourof the plaintiff. Therefore, the first defendant and the plaintiffmutually entered into an understanding between them and agreed toextend the contract. It is further argued that only after theinterim injunction granted by the Court, the endorsement, Ex.A2 dated05.07.1980 was made in the original agreement, Ex.A1. In view of thefact that the contract is sought to be extended for a further periodof two years, a part of the advance amount of Rs.10,000/- wasreceived by the plaintiff. In the endorsement, Ex.A2, it was madeclear that Rs.10,000/- alone is treated as advance and therefore, thefirst defendant, who was prohibited by an order of Court fromexecuting the sale deed, as a law abiding citizen, has voluntarilycome forward and executed Ex.A2, endorsement, as the plaintiff andfirst defendant have no go except to extend the period of contract.It was further argued that since the suit was pending, the firstdefendant further extended the time by six months upto 10.07.1982 bymaking an endorsement, Ex.A3. It was further argued that there was aminor discrepancy as one of the witnesses to Ex.A2 endorsement hasmentioned the date as 15.07.1980 instead of 05.07.1980, which wasonly a bonafide and inadvertent mistake. Even assuming withoutadmitting that the endorsement was made on 15.07.1980, the period wasfurther extended by six months by virtue of an endorsement Ex.A3. Inany view of the matter, such a discrepancy is only a minor one and itcannot be called as a legal flaw or otherwise.14. It is further argued by the counsel for the plaintiff thateven after extending the contract on two occasion, the suit waspending, besides that it was set exparte as against the firstdefendant and on the application filed by the first defendant, theexparte order was set aside. In the meantime, the wife and daughtersof the first defendant have filed application to implead themselvesby contending that they have right over the property. In suchcircumstance, there was a necessity to get the endorsement under https://hcservices.ecourts.gov.in/hcservices/ Ex.A3. Moreover, the period under Ex.A2 came to an end on 10.07.1982before the exparte order and therefore the plaintiff and firstdefendant have agreed to extend the contract period by another sixmonths. To further strengthen the contract, apart from the advanceamount of Rs.10,000/- in the hands of the first defendant, a furthersum of Rs.1,000/- was paid by the plaintiff as advance which wouldindicate that the plaintiff was always ready and willing to pay thebalance sale consideration. The fact that Rs.1,000/- was advanced bythe plaintiff on that day i.e.,30.06.1982 for extending the contractby six months would only go to show that the plaintiff was ready andwilling on her part and she has ready money available with her topay. In fact, the documents namely income tax returns for the period1983-1984, Exs. A6 to A10 would categorically indicate that theplaintiff has got means to pay the balance sale consideration. Theincome tax return comprised both the firm in which the plaintiff wasa partner and her individual return, which would only disclose theplaintiff's readiness and willingness to undertake the contract. Itwill also indicate that the plaintiff can pay the balance saleconsideration from the firm or from her own earnings, which aresufficient to show the readiness of the plaintiff. The learnedcounsel for the plaintiff/appellant would contend that the firstdefendant alone was responsible for the inordinate delay because hissons have filed O.S.No. 950 of 1980 after the execution of Ex.A1,agreement of sale to circumvent the legitimate claim of theplaintiff. The Plaintiff also came to know that the first defendant,along with his sons seems to have stage managed the whole transactionby inducing his sons to file a suit for injunction on the one handand by making endorsements in favour of the plaintiffs extending thecontract on the other hand. Therefore, at no point of time, theplaintiff could be found at fault. In fact, this will also be provedby the fact that the plaintiff has issued notice dated 24.12.1982,Ex.A4, calling upon the first defendant to receive the balance saleconsideration and execute the sale deed. Even though it was servedon the first defendant, the first defendant has not chosen to giveany reply. The fact that the first defendant has not replied wouldprove that the default is only on the part of the first defendant andnot on the plaintiff.15. The learned counsel for the plaintiff further argued thatsince the first defendant in the written statement has not at allpleaded anything averse against the endorsements in Exs. A2 and A3,and he is the person who executed and having admitted theendorsements without any demur, the legal representatives on record,after his death, has no right to say anything about the endorsementsin Exs. A2 and A3. Therefore, the defendants 2 to 7 are estopped andprohibited from claiming anything against the endorsement inasmuch asthe executor himself, without any demur, admitted the sale agreement.Moreover, this defence is not open to the legal heirs of the firstdefendant. Inso far as the willingness and readiness is concerned,excepting a bald allegation made by the first defendant that theplaintiff was not ready to receive the balance sale consideration, nowhere it was pleaded by the first defendant that he has issued anynotice calling upon the plaintiff to pay the balance saleconsideration. Contra, the first defendant could not have demandedthe balance sale consideration, because, by virtue of an order ofinjunction granted by the court, he was prohibited and restrained https://hcservices.ecourts.gov.in/hcservices/ from executing the sale deed in favour of the plaintiff.Subsequently also, the suit itself was decreed exparte and on theapplication filed by the first defendant, the exparte order was setaside. Under those circumstances, the claim of the plaintiff has tobe accepted inasmuch as she was always ready and willing to performher part of the contract and prayed for setting aside the decree andjudgment passed by the court below.16. Per contra, Mr. K.C. Rajappa, learned counsel appearing forthe Defendants 2 to 4 vehemently argued that the contract itself hasbecome unenforceable for the reason that immediately after theexecution of the sale agreement, the suit in O.S. No. 915 of 1980 wasfiled by the sons of the first defendant stating that the firstdefendant is not the absolute owner of the suit property and he hasonly life estate over the property. Furthermore, interim injunctionwas granted by the competent Court restraining the first defendantfrom executing the sale deed. Therefore, the endorsements on theback of the agreement namely Exs. A2 and A3 are invalid. The firstdefendant has no right to encumber the suit property. On theexecution of the endorsement under Ex.A2, when part of the amount wasre-paid by the vendor, the first defendant, to the plaintiff, thecontract comes to an end and therefore the contract is unenforceablein law. 17. He further argued that the agreement itself is not aconcluded contract in view of the subsequent development namelyrefund of 50% of the advance amount and even thereafter,subsequently, in the year 1982, a further advance of Rs.1,000/- waspaid by the plaintiff, therefore, there is no concluded contract tobe performed, hence, the sale agreement itself has becomeunenforceable in law. Further, the rights of the party has been incloud, which is also the subject matter of a suit and therefore, thesuit for specific performance is not maintainable when the other suitin O.S. No. 915 of 1980 was pending. In such circumstance, the suitfiled by the plaintiff is hit by the principles of lis pendence andit is not maintainable in law. 18. The learned counsel for the Defendants 2 to 4 furtherpleaded that the plaintiff was never ready and willing to perform herpart of the contract. The fact that the sale agreement was sought tobe extended for a period of two years beyond the original period ofthree months on the ground that an order of injunction was passed bythe competent court would indicate that the plaintiff was sufferingto get along with the said transaction as it is no longer possiblefor her to have the sale deed executed. Inasmuch as the plaintiffalso sought for second extension by six months, it has to beconcluded that the plaintiff was never ready and willing to performher part of the contract. 19. Lastly, he would contend that the plaintiff's husband was atenant in respect of the suit property and he is fully aware that thefirst defendant has no manner of right to enter into the saleagreement. The Plaintiff's husband has manipulated the saleagreement and allegedly obtained extension for performance of thecontract and therefore also the suit is not maintainable. He furthercontended that if the advance amount is sought for or refunded, then https://hcservices.ecourts.gov.in/hcservices/ the contract cannot be proceed further and it cannot be a concludedcontract.20. Mr. T.R. Rajaraman, learned counsel for the defendants 5 to7, who are wife and daughters of the first defendant ThamannaChettiar, would contend that presently, the defendants 5 to 7 are theactual owners of the suit property by virtue of a Will executed bythe first defendant and the same was also mentioned in the writtenstatement. Furthermore, the suit in O.S.No. 915 of 1980 was disposedof by the court below during the pendency of the present appeal. Infact, the court below returned the plaint in O.S. No. 915 of 1980 tobe presented in the appropriate court as the valuation of the suitproperty in that suit was questioned. The learned counsel alsobrought to the notice of this Court that another suit was filed bythe mother of the defendants namely the fifth defendant fordeclaration to declare that the Will as null and void. Even thatsuit was also returned by the court below along with O.S. No. 915 of1980 and both the suits were directed to be re-presented before thecompetent Court. Therefore, CMP No.10026 of 2006 was filed pendingthe present appeal for reception of additional documents namely thedecree and judgment dated 17.07.1995 made in O.S. No. 915 of 1980 andthe Plaint in P.O.P. No. 12 of 2002 on the file of the SubordinateJudge, Salem. Apart from this, the fifth defendant has also filedO.S. No. 330 of 2004 on the file of the Additional Fast Trck Court-IISalem whereby the validity of the Will has been upheld and thedefendants 5 to 7 have been declared to be the owners of the suitproperty. According to the counsel for the defendants 5 to 7, thissubsequent development is vital for adjudicating the present appealand the petition filed for reception of additional documents has tobe allowed. It was also contended that till date, the defendants 2to 4 have not filed any appeal as against the judgment, therefore,the findings rendered in O.S.No. 330 of 2004 has become final whichalso clearly establishes that the first defendant was the owner ofthe suit property. Therefore, he would only contend that the firstdefendant, being the original owner of the property, has got right toexecute the sale agreement in favour of the plaintiff, but theplaintiff was not ready and willing to perform her part of thecontract, in other words, the readiness and willingness of theplaintiff has not been proved, hence, the suit for specificperformance is not maintainable. He would further plead that if thisCourt considers that the plaintiff is entitled to a decree forspecific performance, the sale consideration has to be paid only tothe defendants 5 to 7, who have now become the owners of the suitproperty and the other defendants have no right, title or interest.As far as the endorsements, Exs. A2 and A3, the defendants 5 to 7have neither raised any objection in the written statement, nor thelearned counsel made any argument before this Court.21. On careful consideration of the oral and documentaryevidence let in both sides and the submission made by the counsel oneither side, the main point which arise for consideration in thisappeal, at this point of time, is the subsequent events that tookplace during the pendency of this appeal. It is now admitted by theparties concerned that the suit filed by the sons/defendants 2 to 4,as against the first defendant in O.S. No. 915 of 1980, challengingthe legal right of the first defendant over the suit property, has https://hcservices.ecourts.gov.in/hcservices/ been returned by the competent court for re-presentation before theappropriate court by a decree and judgment dated 17.07.1995 in viewof the fact that the valuation of the suit itself has beenquestioned. It is also admitted that the sons/defendants 2 to 4 havenot filed any appeal or any further suit pursuant to the return ofthe plaint in O.S. No. 915 of 1980 or re-presented the plaint beforethe appropriate Court. Similarly, the fifth defendant also filed asuit in P.O.P. No. 12 of 2002 before the Subordinate Judge, Salem fordeclaration to declare that she is entitled to enjoy the suitproperty till her life time, as per the Will executed by the firstdefendant on 20.04.1974 and 22.04.1974. The said P.O.P. No. 12 of2002 was also returned for re-presentation before the appropriateCourt. Thereafter, the fifth defendant has filed a suit in O.S.No.330 of 2004 for declaration to declare that as per the Willexecuted by the first defendant the defendants 5 to 7 have become theowner of the suit property. The court below also found that the Willexecuted by the first defendant is valid and the first defendant'sright over the suit property has been confirmed. Ultimately, aftercontest by the sons, the said suit was decreed in favour of the fifthdefendant, confirming the status of the first defendant as owner ofthe property. The copy of the judgment has also been produced forperusal of this Court. It is further admitted by all partiesconcerned that till today, even though the judgment was rendered inO.S. No. 330 of 2004 in the year 2007, the sons have not filed anyappeal. Therefore, the decree and judgment made in O.S. No. 330 of2004 has become final. This subsequent event is a vital aspect foradjudicating the present appeal. Since subsequent events have beenbrought to the notice of this Court by filing CMP No.10026 of 2006and prayed to receive additional documents, which are necessary foreffectively adjudicating the present appeal, there is no impedimentin allowing this application and no serious objection has also madeby the respondents in that petition, hence, CMP No.10026 of 2006 isordered as prayed for. The decree and judgment in O.S. No. 905 of1980 and the decree and judgment in O.S. No. 330 of 2004 and theplaint in P.O.P. No. 12 of 2002 are ordered to be marked asadditional documents on the side of the defendants as Exs. B7 to B11.22. It is clear from the subsequent events brought forth thatthe parties legal right has been adjudicated by a competent court andit has been established that the first defendant is the owner of theproperty. Therefore,the first defendant has got a legal right toexecute the Will in respect of the suit property in favour of hisdaughters and wife and they become the present owners of the suitproperty. If this is taken into consideration, the first argument ofthe defendants 2 to 4 that the first defendant has no right toexecute Ex.A1, sale agreement in favour of the plaintiff hascompletely shattered. The suit in O.S. No. 915 of 1980 filed by thedefendants 2 to 4 was returned as early as on 17.07.1995 and they didnot pursue the matter further. Admittedly, when the suit in O.S. No.915 of 1980 was pending before the court below, the present suit inO.S. No. 51 of 1983 filed by the plaintiff for specific performancewas also pending. It is true that interim injunction was granted inO.S. No. 915 of 1980 restraining the first defendant from executingthe sale deed. When there was an injunction by a competent Court,naturally, even if the first defendant, on that date is considered tobe the owner of the property, he could not execute the sale deed in https://hcservices.ecourts.gov.in/hcservices/ favour of the plaintiff and he has to wait for the outcome of thesuit. This has only necessiated the plaintiff and the firstdefendant to mutually extend the period of contract for two years bymaking endorsement, Ex. A2 dated 05.07.1980. Such an endorsement hasbeen made for a limited purpose of extending the time for a furtherperiod of two years in view of the grant of interim injunction by theCourt. The other clauses in Ex.A1, agreement of sale were notaltered or modified except by extending the time. Whereas, thelearned counsel for the defendants 2 to 4 mainly argued that therewas a refund of a portion of the advance amount and if really theintention of the parties was to extend only the time, there need notbe any refund. Once there is a refund of money, as per the decisionof this Honourable Court, it would amount to forfeiture of contractor the contract itself cannot be called as a concluded contract. Inthis context, he relied on the decision reported in (A. Shanmugam andothers vs. T.R. Kannappa Mudaliar and others) 1989 2 Law Weekly 274to say that once there is a change in the advance amount, it is not aconcluded contract and it is hit by Section 54 of the Transfer ofProperty Act. In Para No. 7, 12 and 13, it was held as follows:-"7. The question whether a documentconstitutes a concluded contract has to bedecided on the facts of each case. Where theparties contemplate a further agreement inwriting, the question would be whether theexecution of a further agreement is a term of thebargain or whether it is a mere expression of thedesire of the parties as to the manner in whichthe original agreement is to be performed....."12......It is not disputed that the secondrespondent refunded the amount of advance andstated that he could not complete the transactionwithin a reasonable time. This clause itselfwould show that Ex.P1 was not intended tobe aconcluded contract."23. In the above decision, this Court held that whether adocument constitutes a concluded contract or not has to be decided onthe facts of each case. Where the parties contemplate a furtheragreement in writing, the question would be whether the execution ofa further agreement is a term of the bargain or whether it is a mereexpression of the desire of the parties as to the manner in which theoriginal agreement is to be performed.24. In the case on hand, a reading of Ex.A1, agreement of saleand the endorsements made therein namely Exs. A2 and A3 woulddisclose that it is an expression of desire of the parties as to themanner in which the original agreement is to be executed. This hasalso been proved by the fact that only 50% of the advance amount hasbeen returned and the balance 50% of the advance amount was retainedby the first defendant, therefore, it defines the fulfilment of thecontract, coupled with the fact that in the second endorsement, afurther time of six months was granted for execution of the sale deedand at that time a further sum of Rs.1,000/- was paid as saleadvance. This would clearly indicate that the desire of the parties https://hcservices.ecourts.gov.in/hcservices/ was to continue the contract. Therefore, the decision relied on bythe counsel for the Defendants 2 to 4 only supports the case of theplaintiff. 25. The learned counsel for the Defendants 2 to 4 also relied onthe decision reported in (Palaniappa Mudaliar vs. Sivanmalai Gounder)1971 Law Weekly 392. In the said Ruling, the learned Judge of thisCourt held that it is recognised principle that all personscontemplating acquisition of property are bound to take notice of anaction involving the title and will on their peril, purchase the samefrom any of the parties to the suit. The said observations clearlyindicate that the parties to an agreement have to take notice of thependency of the litigation. This decision also supports the case ofthe plaintiff. In this case, due to the suit filed by the defendants2 to 4 against the first defendant, after the execution of Ex.A1,agreement of sale, the plaintiff and the first defendant mutuallyagreed to extend the period for performance of the contract by twoyears, which was further extended for another six months. 26. In the very same decision reported in (Palaniappa Mudaliarvs. Sivanmalai Gounder) 1971 Law Weekly 392 it was observed in paraNo.4 as follows:- "4.Thus, while it has sometimes been saidthat a pendente lite purchaser 'takes nothing' itis generally held that the rule is not intendedto nullify transfers or prevents sales ofproperty, but merely to hold property within thejurisdiction and control of the Court pendingdetermination of the controversy, therebypreventing third persons from acquiring suchinterests therein as would preclude giving effectto the judgment."27. In the case on hand, the plaintiff was in occupation of thesuit property as a tenant, waiting for the outcome of the litigation,which a normal prudent man would decide under those circumstances.Therefore, it cannot be said that the pendency of O.S. No. 905 of1980 filed by the sons would in any manner affect the right of theplaintiff as an agreement holder.28. The next decision relied on by the counsel for theDefendants 2 to 4 was reported in (Aniglase Yohannan vs. Ramlatha andothers) (2005) (5) CTC 800 wherein in para No.12, the HonourableSupreme Court held as follows:-"12.The basic principle behind Section 16(c) read with Explanation (ii) is that any personseeking benefit of the specific performance ofcontractmust manifest that his conduct has beenblemishless throughout entitling him to thespecific relief. The provision imposes a personalbar. The Court is to grant relief on the basis ofthe conduct of the person seeking relief. If thepleadings manifest that the conduct of theplaintiff entitles him to get the relief on https://hcservices.ecourts.gov.in/hcservices/ perusal of the plaint he should not be denied therelief."29. In the above said decision, the Honourable Supreme Courtcautioned that the Court must grant relief on the basis of theconduct of the person who seeks such relief and if the pleadingsmanifest that the conduct of the plaintiff entitles him to get therelief on perusal of the plaint he should not be denied the relief.In this case, the conduct of the plaintiff through out was that sheshould purchase the suit property lawfully and she expressed herdesire to purchase the suit property, which is resonable andacceptable. On a reading of the plaint as a whole, this Court feelsthat the relief prayed for by the plaintiff should be granted.30. The learned counsel for the Defendants 2 to 4 further reliedon the decision of the Honourable Supreme Court reported in (H.P.Pyarejan vs. Dasappa (Dead) by LRs and others) 2006 2 SCC 496 to saythat under Section 16 (c) of the Specific Relief Act, therequirements of the plaintiff is to aver in the plaint and establishthe fact that he is always ready and willing to perform his part ofthe contract and his conduct should be throughout entitling him tothe equitable relief of specific performance. In that case, it washeld by the courts below that the plaintiff therein failed toestablish that he was ready and willing to perform his part of thecontract and therefore he was denied the relief. On second appeal,the High Court, without framing a substantial question of lawrendered a decision, therefore, the Honourable Supreme Court setaside the Judgment of the High Court and remanded it for freshconsideration by framing questions of law. Therefore, the saiddecision will not be applicable to the case on hand.31. As far as the principles of 'readiness and willingness' isconcerned, the learned counsel for the Defendants 5 to 7 relied onthe decisions reported in (i) (Aniglase Yohannan vs. Ramlatha andothers) (2005) (5) CTC 800 (ii) (G. Ramalingam vs. T. Vijayarangam)2007 (1) CTC 243 and (iii) (K.R. Venugopal vs. K.R. Srinivasan and 4others) 2009 (1) CTC 803. As per the earlier discussion, theplaintiff has not only pleaded but also proved that she was alwaysready and willing to perform her part of the contract. Therefore,the above said decisions will not lend support to the argument of thecounsel for the defendants 5 to 7. In the case on hand, theplaintiff not only issued notice before institution of the suit, butalso pleaded in the plaint that she is always ready and willing toperform her part of the contract. She has also filed her Income Taxreturns to show sufficiency of source for her to get the sale deedexecuted in her favour. 32. In so far as the principles of 'conclusiveness of thecontract' the learned counsel for the Defendants 2 to 4 relied on thedecision reported in (Pukhraj D. Jain and others vs. G.Gopalakrishna) 2004 (3) CTC 308 and (P. Paneerselvam vs. A. Baylis)2005 (5) CTC 17. 33. In the decision of the Honourable Supreme Court in (PukhrajD. Jain and others vs. G. Gopalakrishna) 2004 (3) CTC 308 theagreement holder originally instituted a suit for recovery of the https://hcservices.ecourts.gov.in/hcservices/ advance amount paid and later on filed an application to amend thesuit as one for specific performance. That application was dismissedand thereafter the plaintiff in that suit filed a suit for specificperformance. The Honourable Supreme Court held that the plaintiff,having issued a notice rescinding the contract and thereafter filed asuit for recovery of money, he is not entitled to seek for specificperformance. In that case, curiously, the agreement holder has fileda suit for return of money, which was decreed and thereafter, theplaintiff himself filed a revision to get an order of rejection ofthe plaint. In this case, the facts are totally different and therewas no demand from the plaintiff for refund of money. Therefore thesaid decision is not applicable to the facts of the case on hand. 34. In the decision reported in (P. Paneerselvam vs. A. Baylis)2005 (5) CTC 17, a Division Bench of this Court held in para No.14and 23 as follows:-"14.In the present case,the only certainityis regarding the total consideration amount ofRs.1,00,000/- which was admittedly paid to thedefendant. However, neither the identity of theland to be sold nor the extent of land to be soldnor even the rate of land per cent had beenindicated. In such a scenario, it is difficultto accept the contention of the learned seniorcounsel for the respondent that a completedagreement was in existence between the parties.23.In the present case,the defect in theagreement is not that the consideration amounthad not been fixed. As a matter of fact, thetotal consideration of Rs.1,00,000/- had beenpaid. The difficulty is regarding the property,which was to be sold. The agreement does notspecifically indicate that a particular propertywas tobe sold. The agreement merely indicatesthat out of future property to be acquired orfrom the property already acquired, propertyworth Rs.1,00,000/- is to be conveyed. If therewould have been acceptable materials to indicatethat in fact theparties had agreed the landrequired to be sold at a particular rate percent, even the Court could have come to theassistance of the plaintiff by saying that theland of equivalent value is required to be sold.In the present case, in the absence of any rateregarding the rate per cent and in the absence ofspecific identity of the property, we areconstrained to come to the conclusion that theplaintiff cannot seek for specific performance ofthe contract as the contract continues tobe vagueand indefinite."35. In that case before the Division Bench, the very identity ofthe land to be sold or extent of the land to be sold itself was indispute. Therefore, it was held by the Division Bench of this Court https://hcservices.ecourts.gov.in/hcservices/ that the contract is not a concluded contract and there cannot be anyspecific performance on the basis of such an agreement. In our case,admittedly, the contract has been concluded as the further course ofexecution of the contract alone was sought to be implemented by thefirst defendant by means of endorsements. Therefore, the plea ofinconclusiveness of contract pleaded by the Defendants 2 to 4 has tobe rejected.36. Mr. T.R. Rajaraman, learned counsel for the Defendants 5 to7 relied on the decision reported in (Vasantha and others vs. M.Senguttuvan) 1998 (I) CTC 186 to say that the plea of the plaintiffthat she was ready and willing to perform her part of the obligationis unacceptable. In that decision, this Court held that the plea ofreadiness and willingness should not only be pleaded but it must beimplemented in accordance with the terms stipulated in the agreement.As mentioned above, in this case, the plaintiff has come forward toget the sale deed executed in her favour, but for the injunctiongranted by the court, in a suit filed by the sons of the firstdefendant, she could not get the sale deed executed by the firstdefendant and only the time was extended for completion of the saleby making endorsements on the reverse of the agreement of sale. Toprove that the plaintiff is having sufficient money, the plaintiffhas produced the income tax return, both of the firm as well as herindividual return, which would categorically indicate that she ishaving sufficient source of income to perform her part of theobligation. To prove that the plaintiff is having sufficient fundsto get the sale completed, she need not carry the money with her, butit has to be proved by documentary and oral evidence. In this case,the plaintiff has proved beyond reasonable doubt that she is havingready money with her.37. The learned counsel for the Defendants 2 to 4 contended thatthe plaintiff has not stepped into the witness box and her husbandalone was examiined. This argument cannot be countenanced. InIndia, it is common that male members takes care of the requirementsof the female and supports them in all their endeavours. Therefore,it cannot be attributed that there is anything wrong in not examiningthe plaintiff, that too in the year 1980. In his evidence, theplaintiff's husband also categorically stated that his wife is readyand willing to perform her part of the contract and also fileddocumentary evidence to prove the source of income. PWs 2 and 3 werealso examined, who are attestors of the endorsements Exs. A2 and A3,who have categorically spoken about the manner in which theendorsements, Exs. A2 and A3, were attested by them. Moreover, thefirst defendant/vendor himself has filed a written statement, but henever chosen to oppose the execution of sale agreement, Ex.A1 and theendorsements thereof under Exs.A2 and A3. Therefore, it is not opento the sons, who are Defendants 2 to 4, to question the endorsementsmade in Ex.A1. Moreover, the Defendants 2 to 4 have wantonly anddeliberately abandoned the suit filed by them in O.S. No. 905 of1980, which is the basic cause for all these litigations. TheDefendants 2 to 4, having abandoned the suit in O.S. No. 905 of 1980,which was returned for re-presentation before the competent court, itis not open to them to challenge the other proceedings. The conductof the Defendants 2 to 4 only prove that they filed O.S. No. 905 of1980 only to forestall the execution of sale by the first defendant https://hcservices.ecourts.gov.in/hcservices/ in favour of the plaintiff. Moreover, the question of title over theproperty was also now settled and the Defendants 5 to 7 are entitledto the property as owners of the property. Therefore, the plaintiffis entitled toget the sale deed executed by the Defendants 5 to 7 inher favour. 38.In view of the foregoing discussions, all the questions oflaw framed in this appeal are answered in favour of the plaintiff andagainst the Defendants.39. The learned counsel for the Defendants 5 to 7 now brought tothe notice of this Court that since Ex.A1, agreement of sale wasentered into between the deceased first defendant and the plaintiffin the year 1980, agreeing to sell the property for a sum ofRs.1,00,000/-, after 30 years, the value of the property has enhancedmanifold and therefore prayed this Court to direct the plaintiff topay additional amount for sale of the property by relying upon thedecision of the Honourable Supreme Court reported in (Pratab LakshmanMuchandi and others vs. Shamlal Uddavadas Wadhwa and others) 2008 2Law Weekly. 40. In that decision, the agreement of sale was entered intobetween the parties in the year 1982 and the judgment was rendered bythe Honourable Supreme Court in the year 2008. It was held by theHonourable Supreme Court that since much water has flown under thebridge and the value of the real estate has shot up very high, whileexercising jurisdiction under Section 20, the Court would like to beequitable and would not allow the sale of the property to be executedat Rs.1,20,000/- inasmuch as the litigation has prolonged for almost25 years. Ultimately, the Honourable Supreme Court fixed the saleprice at Rs.5 lakhs and totally on payment of Rs.6,10,000/- sale wasdirected to be executed. 41. Ms. P.T. Asha, learned counsel for the appellant submittedthat no doubt the property is situate in a commercial hub in the cityof Salem, however, the additional amount claimed by the Defendants isunreasonable. Further, for no fault of the plaintiff, the plaintiffshould not be put to hardship by directing to pay additional amount.As per the decision of the Honourable Supreme Court, the plaintiffhas to pay the market value of the property prevailing as on date.However, she prayed this Court to fix a reasonable amount asadditional sale price. 42. Considering the fact that the value of the property hasincreased manifold in view of the pendency of the litigation betweenthe parties for more than 29 years, following the decision of theHonourable Supreme Court stated supra, this Court feels that thedefendants 5 to 7 are entitled for a reasonable enhancement in thesale amount. Moreover the plaintiff has lost her case before theCourt below and only before this Court she has now succeeded. Eventhough the plaintiff was only a tenant, she is depositing the rentinto the Court, which is also agreed by all the parties. The learnedcounsel for the Defendants 2 to 4 contended that even though theDefendants 2 to 4 have lost the legal battle, their mother andsisters can be granted higher sale amount. https://hcservices.ecourts.gov.in/hcservices/

43. On consideration of all the above factors, this Court feelsthat a sum of Rs.10,00,000/- as sale price would meet the ends ofjustice. As per the original sale agreement, Ex.A1, the value wasfixed at Rs.1,00,000/- out of which plaintiff had already paidRs.11,000/-. Therefore, the plaintiff has to pay *Rs.9,89,000/- assale price. Whatever amount deposited by the plaintiff into theCourt towards rental amount can be treated as part of the sale amountand the balance amount, out of *Rs.9,89,000/-, is payable by theplaintiff. On receipt of the sale price, the Defendants 5 to 7 aredirected to execute the sale deed in favour of the plaintiff.Inasmuch as possession of the property continues with the plaintiff,the sale deed alone has tobe executed by the Defendants 5 to 7 andthe question of delivering possession do not arise. The Defendants 2to 4 are also directed to acknowledge the ownership of the suitproperty in favour of the Defendants 5 to 7. 44.In the result, the appeal suit is allowed setting aside thedecree and judgment dated 15.11.1990 made in O.S. No. 51 of 1983 onthe file of the Principal Subordinate Judge, Salem. No costs. Sd/Asst.Registrar27.1.2010*Corrected as per order ofthis Court dt.12.4.2010and made in A.S.No.536 of 1991sd/-Assistant Registrar16.4.2010/true copy/Sub Asst.RegistrarrshTo1. The Principal Subordinate Judge Salem2. The Section Officer, VR Section,To be High Court, Madras.substituted tothe order1 cc To Mr.K.C.Rasappa, Advocate, SR.71043alreadydespatched1 cc To Mr.Sarvabhauman Associates Advocate, SR.24177on 10.2.20101 cc To Mr.T.R.Rajaraman, Advocate, SR.24173A.S. No. 536 of 1991GV(CO)sra 29.01.2010sra 19/04/2010