NO.2 v. ADDL

P.R. RAMAN & P.S. GOPINATHAN, JJ.--------------------------------------------------A.F.A. NO.6 of 2000---------------------------------------------------DATED:MARCH 23, 2009.JUDGMENTRaman, J.This is an appeal filed by the 2nd defendant against thejudgment and decree passed by the learned Single Judge inA.S.No.272/1989.2. The suit was one for specific performance instituted byPadmavathy Amma as plaintiff. The plaint schedule property forms anextent of 20 cents in Sy.No.168/4 in Ottapalam desom, OttapalamTaluk was allotted to the 1st defendant in the family partition Ext.B1dated 4.5.1981. The 1st defendant thereafter entered into anagreement for sale with the plaintiff as per Ext.A1 dated 7.7.1982 forthe sale of the plaint schedule property for consideration ofRs.14750/- after paying an advance of Rs.5000/-. The time forregistration was fixed upto 15.11.1982. According to the plaintiff shewas ready and willing to perform her part of the contract, but the 1stdefendant, fully aware of the legal obligation to complete the sale interms of Ext.A1, sold the property to the 2nd defendant, her brotherwho was aware of the karar between the plaintiff and the 1stdefendant. Though the plaintiff approached the 1st defendantrequesting her to receive the balance sale consideration and execution A.F.A. NO.6 of 2000:2:of the sale deed, she did not do so. Hence the suit for specificperformance.3. In the plaint it is also contended that the sale deedexecuted by the 1st defendant in favour of the 2nd defendant is asham document without consideration and without bona fides andtherefore not binding on the plaintiff or the property. The 2nddefendant is also not a bona fide purchaser without notice. Plaintiffis thus entitled to get the property sold to her as agreed under thecontract and hence prayed for a decree directing the 1st defendantto execute the assignment deed in favour of the plaintiff on depositof the balance consideration of Rs.9750/- and on failure to do so bythe 1st defendant, to get the assignment deed executed throughcourt. 4. The 1st defendant in her written statement admitted thatan agreement was executed between the plaintiff and her to assignthe plaint schedule property in favour of the plaintiff. But theagreement produced along with the plaint is not the one executedby the 1st defendant. The agreement executed by the 1stdefendant was in the handwriting of her husband, but what isproduced by the plaintiff is a concocted one and the plaintiff is notentitled for a decree for specific performance. At the time of theagreement, the defendant was not aware of all the terms in thepartition deed and only later she realised that there is a stipulationin the partition deed entered into between the members of the A.F.A. NO.6 of 2000:3:family that the tank in the plaint schedule property is to be used forirrigating the compound and to take bath for all the members of thetarwad. There is no other tank for use by women at the tarwad atthe time of their menses period. After the agreement, themembers of the family sent a registered notice stating that the 1stdefendant has no right to sell the property, the 1st defendant senta reply notice to the husband of the plaintiff believing that he isthe person who agreed to purchase the property and intimated himof her difficulties in selling the property and requesting him tocancel the agreement. But that notice was returned stating thatthe address is not correct. Thereafter it was repeated in favour ofthe plaintiff. The plaintiff is not entitled for specific performance ofthe contract, that the defendant has assigned the property in favourof the 2nd defendant and prayed for dismissal of the suit.5. The 2nd defendant filed a written statement adopting thecontentions raised by the 1st defendant in her written statementand added to say that he is the bona fide purchaser for value.6. As many as seven issues were raised for trial. Theevidence consisted of the oral testimony of PW.1 and DW.1 and thedecoumentary evidence Exts.A1 to A6, B1 to B6 and C1 and C2.7. There was an ex parte decree passed against thedefendants which was subsequently set aside as perI.A.No.695/1981 filed by the 2nd defendant. A contention wasraised by the plaintiff that the ex parte decree was set aside only as A.F.A. NO.6 of 2000:4:against the 2nd defendant and the decree as against the 1stdefendant became final. Reliance was placed on the observationin the civil revision petition filed before this Court as CRP 63/1985to contend that the decree was set aside only as against the 2nddefendant. However, the court below did not accept thiscontention and held that there is nothing to indicate in the orderallowing IA 695/1989 to indicate that the decree was set aside onlyas against the 2nd defendant. As a matter of fact, after the exparte decree was set aside, the plaintiff had preferred a civilrevision petition before this Court, but it was dismissed by thiscourt. Reference was also made to Order 9 Rule 13 CPC and theproviso thereto to hold that when there is any likelihood ofconflicting decisions, the decree should be set aside against all thedefendants. Subsequently an amendment was carried out in thewritten statement as allowed as per order in IA 1715/1987. Therewas a further revision to this Court as CRP 1858/1987 since theamendment was allowed only partly, and this court allowed theamendment as sought for and it was carried out and therefore itwas held that the 2nd defendant is entitled to challenge the validityof the agreement and raise all the contentions available to the 1stdefendant as well. On the question as to whether the agreementproduced along with the plaint was signed by the 1st defendant, thetrial court held that the existence of an agreement between theplaintiff and the 1st defendant is admitted and the only dispute is A.F.A. NO.6 of 2000:5:as to whether Ext.A1 is that agreement or not. However, if therewas any other agreement, the 1st defendant would have producedthe same, but she did not do so. Further, the opinion of thehandwriting expert is marked in this case as Ext.C2. For thepurpose of considering the genuineness of Ext.A1, the court belowconsidered the evidence of DW.1 and the document. Accordingto the plaintiff who was examined as PW.1, Ext.A1 was executed bythe 1st defendant in the handwriting of of Narayana Menon,husband of the 1st defendant. Exts.A6 and B1 are registereddocuments where the signature of the 1st defendant is seen.True, the name of the 1st defendant is written in Ext.A1 in Englishwhereas in the other document it is written in Malayalam andsignature is put in both these documents after the name. Thecourt, on a comparison, found that the signature in Exts.A1, A6 andB1 are similar. The case of the plaintiff was that Ext.A1 waswritten in the handwriting of one Narayana Menon, the husband ofthe 1st defendant. The very same Narayana Menon has his namein Exts. A6 and B1 and the handwriting there and in Ext.A1 arefound to be similar by the trial court. It is in addition to the aboveevidence that the opinion of the handwriting expert Ext.C2 whichalso shows that there is no discrepancy in the signature. It mustbe noticed that the opinion of the expert itself was obtained at theinstance of the 2nd defendant. There was no evidence to doubtthe correctness of the opinion rendered by the expert and further A.F.A. NO.6 of 2000:6:there were other evidence in the case as discussed by the trialcourt and decided the issue holding that Ext.A1 is the agreementbetween the plaintiff and the 1st defendant and it is genuine.8. Turning to the contention that the 2nd defendant is a bonafide purchaser, the trial court found that Ext.B4 which is the saledeed in favour of the 2nd defendant by the 1st defendant isadmittedly after the agreement of sale, Ext.A1. The saleconsideration for the property is fixed at Rs.14750/- whereas thesale consideration for executing Ext.B4 document by defendants 1and 2 is only Rs.14000/- which is less than the sale considerationfixed under Ext.A1. The 2nd defendant in his written statementhas pleaded that he had gone through the written statement of the1st defendant and was adopting the same. While examined asDW.1 he deposed that when he purchased the property, the sisterswere happy and thereafter there was no problem. He alsocontends that after he came to know about the karar made mentionof in 1st defendant's written statement in paragraph 8, the 2nddefendant and also his sisters said that the property cannot be soldoutside. The court below, after referring to this piece of evidence,came to the conclusion that absence of knowledge of Ext.A1 kararas pleaded by the 2nd defendant is not true. PW.1 categoricallystated that the 2nd defendant had come to his house and wanted tocancel the agreement. DW.2, of course, had denied the same.The stamp paper for Ext.B4 was purchased, written and executed A.F.A. NO.6 of 2000:7:on 3.8.1982 and it was on the same day that the plaintiff sent thenotice to the 1st defendant demanding specific performance. Thecourt below thus found that the plaintiff was ready and willing toperform her part of the contract, but it was the 1st defendant whorefused to perform her part of the contract. But while consideringas to whether a decree for specific performance should be grantedin favour of the plaintiff in the exercise of the discretionary remedy,the court below found that it is as per Ext.B1 partition deedbetween the 1st defendant and other sisters and one brother,who is the 2nd defendant, that the plaint schedule property wasallotted to the share of the 1st defendant. There is a family tank inthe joint family property which is used for irrigation purposes of theentire garden, which tank is also used by the females for takingbath when they are in their menstrual period. Probably becausethe 1st defendant was residing away from the house and theplaintiff's house and the 1st defendant's house were close friends,the 1st defendant was prevailed upon to enter into an agreement.But, at the same time, the plaintiff's husband had some advantagebecause some other properties belonging to him were adjacent tothe suit property. On coming to know of Ext.A1, the familymembers who were permanently residing in the family houseprotested. Since the property in question agreed to be sold takesin the tank and the rights as reserved for the other members tomake use of the tank as per the partition deed, there is an A.F.A. NO.6 of 2000:8:exclusive right conferred on the members of the family. Therefore,by granting specific performance, the right of the other membersreserved for exclusive use of the tank will be violated and this is theonly reason given by the trial court for declining to grant specificrelief. However, alternate relief of return of the amount withinterest was granted. A further amount of Rs.2000/- towardsdamages was also awarded. In appeal the learned Single Judge ofthis Court, however, reversed the decree to the extent it declinedspecific performance. The learned judge, in paragraph 6,considered the question whether the provision in the partition deedgives right to the other sharers to use the water in the pondsituated in the property which was allotted to the 1st defendant asper the provisions of the partition deed and whether it is a groundfor refusing to grant the discretionary remedy. He went on to holdthat merely because it is lawful to do so, specific performancecannot be granted as held by the Apex Court in P.V.Joseph's sonMathew v. N. Kuruvila's son (AIR 1987 SC 2328) and also whenspecific performance cannot be granted if it results in unfairadvantage to one party and hardship to the other. The principleunderlying in those decisions relied on by the contestingdefendants to show that in the light of the specific provision in thepartition deed between the members of the family reservingexclusive right to use the tank by the family members and the saleof the property in favour of any third party would adversely affect A.F.A. NO.6 of 2000:9:the exclusive user of the tank by the family members, as pointedout by the trial court. The learned Single Judge, however, heldthat merely because the properties are allotted as per a partitiondeed wherein right is also given to take water from the tanksituated in the plaint schedule property and also to take bath in thepond, specific performance cannot be refused, and on that groundreversed the decree passed by the trial court and decreed the suitfor specific performance.9. The learned counsel appearing for the appellantstrenuously contended before us that the judgment of the learnedSingle Judge is erroneous and the discretion has been wronglyexercised to grant a decree for specific performance. Accordingto him, the sale of the property to a third party by the plaintiff willresult in great hardship and inequity, to the members of the jointfamily who, by Ext.B1 partition deed, agreed to preserve the tankfor common use by the family members for irrigation purposes alsofor taking bath by the female members during menstrual period.The use of the tank by any third party will therefore violate theterms of the agreement by the other family members. The 1stdefendant who is also a member of the family and a party to thepartition deed is therefore bound by this term and her act cannotdeprive the right of exclusive user of the tank by the othermembers. We find force in this contention. But we have gonethrough the recitals contained in the partition deed and we also A.F.A. NO.6 of 2000:10:agree with the appellant's counsel that the tank is kept in commonfor user by the members of the family. But the crucial point is thatthis tank is not forming part of the plaint schedule property. Inother words, the tank is situated elsewhere in some other portionand the reservation of the tank for user by the members of thefamily will in no way be affected by the sale of the property infavour of a third party and it is not shown that the tank is situatedin the plaint schedule property. It is also not shown that in theagreement for sale, the user of such right in the tank is the subjectmatter of Ext.A1 karar. If so, the ground which prevailed upon thetrial court to deny specific performance and exercise of discretion infavour of the defendant is factually absent in this case. Thereforeit has to be held for our own reason as stated above, that theconclusion reached by the learned Single Judge to grant a decreefor specific performance is correct and that no grounds are provedto exist for denying the specific relief in favour of the plaintiff. It isalso not shown that any other hardship will be caused to thedefendant if specific performance is granted. 10. It is contended by the learned counsel appearing for therespondent that the 1st defendant, having remained ex partewithout contest, must be deemed to have abandoned her right, ifany, based on the contention raised in the written statement. The2nd defendant, in such circumstances, who is the contesting partyand the sole appellant, is not entitled to canvas the contentions as A.F.A. NO.6 of 2000:11:are available to the 1st defendant alone. The karar Ext.A1 isbetween the plaintiff and the 1st defendant. If at all any equityconsideration weigh with the 1st defendant, it is she who alonecan claim any relief based on the equity and the 2nd defendant,who has purchased the property subsequently after Ext.A1 and whois not found to be a bona fide purchaser without notice, is notentitled to contend or claim any right of equity or seek thediscretion being exercised in his favour. But we are unable to agree with this contention. The answer liesin the decision of the Apex Court in Vidhyadhar v. Manikrao andanother - (1993) 3 SCC 573 wherein it was held by the Apex Courtthat a plea that the sale deed is void, fictitious or collusive can alsobe raised by a defendant who is a stranger to the sale deed and itwill depend upon the pleading of the parties, nature of the suit,nature of the deed, evidence etc. The defendant can raise anylegitimate plea available to him under law to defeat the suit of theplaintiff. Therefore, whatever contention available to the 1stdefendant is available in the hands of the 2nd defendant as wellsince it is the 2nd defendant who really is the interested party andwho alone will be affected if specific performance of the contract isgranted. In other words, the 1st defendant having agreed to sellthe property to the plaintiff and having sold the property to the 2nddefendant has proved her disinterest over the property to beretained. Therefore, merely because the 1st defendant did not A.F.A. NO.6 of 2000:12:contest the matter, in the factual situation it cannot deprive the 2nddefendant any of the contentions which were available to the 1stdefendant to be raised and proved. But, as we have already held,the only ground on which the relief of specific performance wasdeclined by the court below, exercising the discretionary power wason a misconception as to the terms contained in the partition deedand on the misconception that the tank is situated in the plaintschedule property. On a true understanding of the termscontained in Ext.B1 partition deed and in the absence of anymaterial placed on record to show that the tank in question issituated in the plaint schedule property, it has to be understoodthat the tank, though a joint family property belonging to thesharers, is reserved in common, but lies separately and not formingpart of the plaint schedule property.10. Next, it has to be considered whether, while exercising adiscretion by the court under sec.20 of the Specific Relief Act, if theplaintiff has succeeded in proving her readiness and willingness toperform her part of the contract and the failure on the part of the1st defendant (the vendor) to perform her part of the contract isproved and in the absence of any special circumstances to exercisethe discretion and to decline the specific relief or in the absence ofany equitable consideration in favour of the defendant, can thecourt still, under the guise of discretionary power, refuse to grantthe specific relief. We need only look into the provisions contained A.F.A. NO.6 of 2000:13:in sec.2 of the Specific Relief Act, as per which though thejurisdiction to decree specific performance is discretionary and thecourt is not bound to grant such relief merely because it is lawful todo so, but such discretion of the court is not to be exercised in anarbitrary fashion, but to be guided by reasons and principlesjudicially settled and capable of being corrected by the appellatecourt. It is specifically provided in sub-sec.(2) of sec.20 as to whichare the cases in which the court can properly exercise discretionnot to decree specific performance under clauses (a) to (c). Asper clause (a) it must be shown that the plaintiff has got an unfairadvantage over the defendant and as per clause (b) it is to beshown that if the performance of the contract would involve somehardship on the defendant which he did not foresee, whereas itsnonperformance would involve no such hardship on the plaintiff, orunder clause (c) it should be shown where the entering into thecontract by the defendant is, in such circumstances, though notrendering the contract voidable, would make it inequitable toenforce specific performance. Clauses (a) and (b) is totally absentand clause (c) is also absent on facts as discussed above. Themere inadequacy of consideration or that the contract is onerous tothe defendant or merely because it may cause some hardship onthe defendant or that the specific performance of the contract isnot enforceable at the instance of a party are no grounds on whichsuch relief could be refused. It is equally true that specific A.F.A. NO.6 of 2000:14:performance cannot be granted by the court merely because thecontention of the defendant is either unsustainable or found notproved or false. It is also equally true that under sec.20, thecircumstances specified thereunder are only illustrative and notexhaustive. But it is for the party who seeks equitable relief torefuse specific performance, to plead and prove the existence ofany special reason or hardship and pray for the exercise of suchdiscretion in favour of the defendant. The only reason put forth isthe hardship that might be caused to the members of the family inthe light of the specific provision contained in the partition deedwhich we have dealt with and found on fact that no such hardshipwill be caused.11. Lastly, it is contended that during the pendency of thefirst appeal, the plaintiff died and her legal representatives werebrought on record as respondents 1 to 3, of which the 3rddefendant had, by filing an affidavit, supports the contention of the2nd defendant and asserted that the property belong to him onlyexclusively and favours the dismissal of the suit for specificperformance. Merely because one of the legal representatives ofthe plaintiff had relinquished his claim for specific performance,that by itself will not deprive the other legal representatives tocontinue the proceedings stepping into the shoes of the plaintiffand to seek the relief prayed for. It must be remembered that thesuit itself was laid by the father of respondents 1 to 3 and he A.F.A. NO.6 of 2000:15:obtained a decree and, since only the alternate relief was granted,he filed an appeal therefrom and was contesting the matter allthrough. It is only during the pendency of the first appeal that hedied and his legal representatives were brought on record. Thefirst appellate court has reversed the decree in so far as it declinedto grant specific relief and decreed the suit as prayed for. In suchcircumstances any change of mind on the part of one of the legalheirs in no way can affect the right of the respondents nor can itdeprive the respondents to enjoy the fruits of the decree granted bythe first appellate court. In this context it is useful to refer to adecision of the Apex Court in Tek Chand and others v. Deep Chandand others - AIR 2001 SC 1392, also a case arising under theSpecific Relief Act. There also the agreement for sale found to betrue and genuine and had also paid advance and subsequently thevendor one Kare committed breach of contract and failed toexecute the sale deed. He executed a family settlement in favourof his children, defendants 2 and 4, and immediately thereafter hischildren filed a suit for declaration of title over the property, makingKare as a defendant in the suit who did not contest the suit, and adecree was passed in favour of defendants 2 to 4. In a specificperformance suit instituted by the proposed vendee under theKarar, the defence pleaded on the basis of the declaratory decreewas rejected holding that the execution of the family settlementdeed and the subsequent suit for declaration of title followed by A.F.A. NO.6 of 2000:16:execution of the sale deed were all part of a collusive transactionintended to defeat the interest of the 1st respondent. 13. Therefore, as to whether the discretion has to beexercised or not will depend on the facts and circumstances of eachcase and there is no hard and fast rule and the discretion has to beexercised on sound legal principle. The exercise of the discretionby the first appellate court in the facts and circumstances of thecase cannot be said to be in any way vitiated and we do not findany good ground to interfere with the appellate court's judgment.Accordingly the appeal fails and is dismissed. The partiesshall bear their respective costs. P.R. RAMAN, JUDGE.P.S. GOPINATHAN, JUDGE.mt/-