High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated.: 15.05.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.640 of 1994and C.M.P.No.7700 of 19941.Balakrishnan2.Kunja Alias Dhakshinamurthy .. Appellants-Vs-Rajalakshmi .. RespondentAPPEAL filed under Section 100 of Code of Civil Procedure against thedecree in O.S.No.236 of 1990 on the file of the District Munsif Court,Thiruvarur dated 17.9.91 as confirmed in A.S.No.12 of 1992 on the file ofthe District Court, Nagapattinam dated 24.12.92For Appellants :Mr. K.SrinivasanFor Respondent :No Appearance.J U D G M E N TThe unsuccessful defendants in O.S.No.236 of 1990 on the file of theDistrict Munsif Court at Thiruvarur who has suffered a decree for specificperformance has filed the above second appeal against the judgment anddecree passed in A.S.No.12 of 1992 on the file of the District Court,Nagapattinam confirming the judgment and decree passed in O.S.No.236 of1990.2. The case of the respondent is that the first appellant agreed tosell the suit property to her for a sum of Rs.3,240/- on 15.06.1990 and hehas received an advance of Rs.2,101/- from her. The terms of sale wasreduced into writing and an agreement of sale was executed by the firstappellant in favour of the respondent. The respondent through her husbandrequested the 1st appellant to execute the sale deed but the firstappellant was evading, hence a legal notice was issued to the appellantand another brother Paranjjothi. The first respondent alone sent a replystating that there was a mediation after the sale agreement and in themediation the respondent has agreed for the cancellation of theagreement. The case of the respondent is that she never agreed for thecancellation of the agreement. In order to defeat the rights of therespondent the first appellant has executed the sale deed in respect ofthe suit property to his brother the second appellant and according to therespondent the sale deed is not binding on her. The plaintiff was ready https://hcservices.ecourts.gov.in/hcservices/ and willing to perform her part of the contract but the first appellanthas committed breach of agreement and therefore the respondent is entitledto a decree for specific performance. 3. The first defendant contested the suit inter aliacontending that without knowing the contents of the agreement of sale hehas signed the same and though it is stated in the agreement as if anadvance of Rs.2,101/- has been received by the first appellant infact hehas received an advance of Rs.101/- only. It was further contended thatthere was a Panchayat and as per the decision of the Panchayadhars therespondent agreed for the cancellation of the agreement but when the firstappellant offered to refund the advance amount of Rs.101/-, the respondentrefused to receive the same and did not return the original copy of theagreement as per the undertaking given before the Panchayadhars and hencethe respondent has filed the suit for specific performance. It was alsocontended by the first appellant that he is an illiterate person and knowsonly to sign and the agreement was false and fraudulent. 4. On the above said pleadings the following issues were framed bythe Trial Court:- (1) Whether the plaintiff is entitled for a decree for specificperformance and for possession ?(2) To what relief the plaintiff is entitled to on the above saidissues ?On the above issues the parties went into trial and during the trial onthe side of the respondent herein, the husband of the respondent wasexamined as PW1 and one Pa.Chinnayan who attested Ex.A1 Sale Agreement wasexamined as PW2 and on the side of the respondent Exs. A1 to A5 weremarked. On the side of the appellants the first appellant was examined asDW1, one Murugaiyan was examined as DW2 and the second appellant wasexamined as DW3.5. On a careful consideration of the oral and documentary evidenceavailable on record, the Trial Court found Ex.A1 Sale Agreement as trueand binding on the first appellant and after recording a finding that therespondent was ready and willing to perform her part of the contract,decreed the suit as prayed for. Being aggrieved by that the appellantsherein preferred an appeal in A.S.No.12 of 1992 before the District Court,Nagapattinam but the lower Appellate Court by confirming the findings ofthe Trial Court dismissed the appeal. Being aggrieved by that the abovesecond appeal has been filed by the appellants.6. While admitting the second appeal the following SubstantialQuestion of Law has been framed:-“Whether the Courts below have erred in granting thedecree for specific performance when there is no mutuality onthe recitals in EX.A-1? “ https://hcservices.ecourts.gov.in/hcservices/

7. Heard Mr.K.Srinivasan, learned counsel for the appellants.8. The learned counsel for the appellants submitted that Ex.A1agreement has been executed only by the first appellant and his wifewhereas the respondent has not signed Ex.A1 and as such there is noconcluded agreement of sale and therefore the Courts below have committedan error in decreeing the suit for specific performance. The learnedcounsel further submitted that though in the written statement itself thefirst appellant has contended that his signature was received in Ex.A1 byfraud and misrepresentation the Courts below have not properly consideredthe same in the light of the oral evidence available on record. Thelearned counsel further submitted that there is no mutuality on therecitals in Ex.A1 and as such the Courts below have erred in granting adecree for specific performance. In support of the above contentions thelearned counsel relied upon the decisions reported in : (1)Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma ( AIR1990 Kerala 177)(2)S.M.Gopal Chetty Vs. Raman (AIR 1998 Madras 169)(3)Pushpa Bai Vs. Dr.Williams ((2001) 3 M.L.J. 52)(4)R.Chinnadurai Vs. S.Rajalakshmi (2004-4-L.W.186)9. Both the Courts below on a careful consideration of the oral anddocumentary evidence adduced in the case have concurrently found thatEx.A1 agreement is true and genuine and the Courts below have rejected theplea of the first appellant that he had signed Ex.A1 without knowing thecontents of the same. Therefore, the concurrent findings of fact which arebased on evidence available on record cannot be interfered with by thisCourt while exercising power under Section 100 of the Code of CivilProcedure unless the said finding is perverse. It is not the case of theappellant that the findings are perverse. Therefore, the contention ofthe learned counsel has to be considered in the light of the fact thatEx.A1 has been found to be true and genuine. 10. In Narayana Pillai Chandrasekharan Nair Vs. Kunju Amma Thankamma( AIR 1990 Kerala 177) a learned judge of the Kerala High Court hasobserved as follows:“Where an agreement for sale of property was unilaterallyexecuted by the vendor and towards a sale consideration apronote, liable to become time barred, was executed by thevendee and the pronote had become time barred on the expiry ofthe term fixed for execution of sale deed, there was nomutuality of parties and the agreement could not be termed as acontract in the circumstances of case and specific performancecould not be granted.”In S.M.Gopal Chetty Vs. Raman (AIR 1998 Madras 169) a learned judge ofthis Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ “8. If there is no contract at all, then the question ofspecific performance does not arise. As per Section 15 of theSpecific Relief Act, 1963, the contract can be enforced only bya party to a contract. The plaintiff is not a party at all tothe contract. Therefore he is not entitled to obtain a decreefrom Court for specific performance. Hence the suit has to bedismissed on this ground alone.”In R.Chinnadurai Vs. S.Rajalakshmi (2004-4-L.W.186) it is observed asfollows:“19. An agreement must have two parties and both are tosign the same. Only then it is an agreement. For this basicnecessity, there may be exceptions under exceptionalcircumstances as it has been advocated on the part of the Courtsand the case in hand is not falling under the exceptional cases”In Pushpa Bai Vs. Dr.Williams ((2001) 3 M.L.J. 52) it is observed asfollows:“39. It is well-settled and also not in dispute that evenassuming that a contract of sale has been entered by the firstdefendant, it cannot be enforced against the defendants 3 to 5who are not parties and parties being Mohammed as the firstdefendant has no authority to enter into an agreement on behalfof the defendants 3 to 5. If at all the first defendant couldconvey her undivided interest and not more than that even if itis held that Exs.A-1, A-2 and A-6 are true. 40. In the light of the said plea of the first defendantwhen the plaintiff is not a signatory to the Ex.A-1 saleagreement and when the sale agreement recital as well as theentire body of the agreement proceeds as if both the parties areto sign, of Ex.A-1 not being signed by the plaintiff, it is toolate in the day to contend that the plaintiff is entitled tospecific performance of the agreement of sale Ex.A-1. 41. It is well-settled that specific performance ofcontract may be obtained by (i) any party to the agreement, (ii)representative in interest or any member of any party thereto orassignee of the contract are entitled to sue on the contract. The plaintiff had not signed the agreement, nor anyone else hadsigned the agreement Ex.A-1, on behalf of the plaintiff as hisrepresentative or agent or power of attorney. In the light ofthe denial and there being no admission and the plaintiff notbeing a signatory to the agreement Ex.A-1, it is too late forhim to claim specific performance. Further, it is not as if thedefendant in terms of the recital had addressed the terms to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff and bind herself to the stipulation, but being mutualEx.A-1 is not binding.44. A contract for sale of immovable property is a contractthat sale of such property shall take place on terms settledbetween the parties. It may be that a contract of sale ofimmovable property need not be in writing. Yet, even in respectof such oral agreement the burden is on the party to prove thatthere is consensus ad idem between the parties for a concludedoral agreement of sale of immovable property. A contract tosell in the represent case, if at all it is binding on the firstdefendant alone and not on the other defendants namelydefendants 3 to 5 who are not parties to the sale agreement. Further Ex.A-1 proceeds as if the first defendant had agreed toconvey the entire property including the land which would showthat the plaintiff’s intention and also taking advantage of thepossession of the property in the hands of the plaintiff’s wife,Ex.A-1 had been created and signature of the first defendant hadbeen secured on some stamp papers, which agreement is neithertrue nor mutual.“In the decision reported in Kumarasamy Vs. S.K.John (1993 (II) M.L.J.144), a Division Bench of this Court after considering a number ofjudgments of different High Courts including Narayana PillaiChandrasekharan Nair Vs. Kunju Amma Thankamma ( AIR 1990 Kerala 177) hasobserved as follows:“10...... Apart from this Section 20, Sub Section (4) ofthe Specific Relief Act, specifically provides that the Courtshall not refuse to any party specific performance of a contractmerely on the ground that the contract is not enforceable at theinstance of the other party. This statutory provision takescare of such an argument as has been advanced on behalf of theappellant. So we do not find any substance in the argumentbased on lack of mutuality in Ex.A-1 agreement advanced onbehalf of the appellants.11. Once we find that Ex.A-1 agreement is true and thefirst respondent has paid Rs.15,000/- as advance and depositedthe entire balance of sale consideration in Court at the time offiling of the suit, there is no reason for denying the relief ofspecific performance....”11. The above said decision of the Division Bench has not beenbrought to the notice of the learned Judges who have decided the casesreported in S.M.Gopal Chetty Vs. Raman (AIR 1998 Madras 169),R.Chinnadurai Vs. S.Rajalakshmi (2004-4-L.W.186) and Pushpa Bai Vs.Dr.Williams ((2001) 3 M.L.J. 52). The decision reported in KumarasamyVs. S.K.John (1993 (II) M.L.J. 144) being a Division Bench decision thisCourt is bound by the same. https://hcservices.ecourts.gov.in/hcservices/

12. In the decision reported in Pushpa Bai Vs. Dr.Williams ((2001) 3M.L.J. 52), it is not laid down as a proposition of law that unless theplaintiff is a signatory to the agreement of sale he cannot seek specificperformance of the same. In Para 41 of the said decision it is observedas follows:“ in the light of the denial and there being no admissionand the plaintiff not being a signatory to the agreement Ex.A-1,it is too late for him to claim specific performance. Further,it is not as if the defendant in terms of the recital hadaddressed the terms to the plaintiff and bind herself to thestipulation, but being mutual Ex.A-1 is not binding.”The above observation makes it clear that the agreement was not admittedby the defendant and the learned judge has found that the defendant interms of the recitals has not addressed the terms to the plaintiff andbind herself to the stipulation and only in that factual background thelearned judge has observed as above. Therefore, it cannot be stated as aproposition of law, the learned Judge has laid down that unless theplaintiff is a signatory to the sale agreement he cannot enforce the same.The learned judge in Para 44 of the said Judgment has observed as follows: “ 44. ..... A contract of sale of immovable property neednot be in writing. Yet, even in respect of such oral agreementthe burden is on the party to prove that there is consensus adidem between the parties for a concluded oral agreement of saleof immovable property.”Therefore, it is clear that in a suit for specific performance, if theplaintiff is able to prove that there is consensus ad idem between theparties for a concluded oral agreement, the sale agreement can beenforced. In this case as pointed out above, on the evidence available onrecord the Courts below have concurrently found that Ex.A-1 agreement asbeen executed by the first appellant after receiving an advance ofRs.2,101/- from the respondent and as such the respondent has clearlyproved that there was consensus ad idem between the respondent and thefirst appellant. Therefore, merely because the respondent has not affixedher signature to Ex.A-1 agreement the suit for specific performance cannotbe dismissed.13. The observation of the Division Bench of this Court in KumarasamyVs. S.K.John (1993 (II) M.L.J. 144) makes it clear that once the Courtfound that a sale agreement is true and the plaintiff is ready and willingto perform her part of the agreement of sale, the suit has to be decreedgranting a decree of relief of specific performance in view of theprovisions contained under Section 20 (4) of the Specific Relief Act, 1963which specifically provides that the Court shall not refuse to any partyspecific performance of a contract merely on the ground that the contractis not enforceable at the instance of the other party.14. Since the substantial question of law has already been decidedby the law laid down by the Division Bench of this Court in Kumarasamy Vs.S.K.John (1993 (II) M.L.J. 144) strictly speaking the question of lawframed cannot be said to be a substantial question of law at all. https://hcservices.ecourts.gov.in/hcservices/

15. For the reasons stated above, the substantial question of lawframed is answered against the appellants and in favour of the respondent.Accordingly, the second appeal fails and the same is dismissed. But,however, there will be no order as to costs. Consequently, the connectedC.M.P. is closed.kkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The District Munsif Court, Thiruvarur2.The District Court, Nagapattinam3.The Record Keeper, VR Section, High Court, Madras.KLT(CO)dcp/01.6.07 Second Appeal No.640 of 1994 and C.M.P.No.7700 of 1994