IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
27. 06.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.75 of 2011 and M.P.No.1 of 2011 Ponnammal (died) 1. J.Devadasan 2. J.Gopu 3. J.Punniyakotti 4. J.Manoharan 5. R.Kumaravel .. Appellants vs. M.Harikrishnan .. Respondent This second appeal is directed against the judgment and decree dated 26.08.2010 passed by the learned Subordinate Judge, Kanchipuram in A.S.No.41 of 2009 in confirming the judgment and decree dated 09.07.2009 passed by the learned District Munsif cum Judicial Magistrate, Sriperumbudur in O.S.No.524 of 2008. For Appellants : Mr.M.Ramamoorthy for Mr.M.D.Thirunavukkarasu For Respondent : Mr.M.Venkatachalapathy Senior counsel for Mr.Y.Jyothish ChanderJUDGMENT
This second appeal is focussed by the defendants, inveighing the judgment and decree dated 26.08.2010 passed by the learned Subordinate Judge, Kanchipuram in A.S.No.41 of 2009 in confirming the judgment and decree dated 09.07.2009 passed by the learned District Munsif cum Judicial Magistrate, Sriperumbudur in O.S.No.524 of 2008.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts, which stood uncurtained and unveiled, which are absolutely necessary and germane for the disposal of this second appeal, would run thus: a]. The plaintiff-Harikrishnan filed the suit as against the following six persons:
1. Ponnammal 2. J.Devadasan 3. J.Gopu 4. J.Punniyakotti 5. J.Manoharan 6. R.Kumaravel seeking the relief of specific performance with regard to the immovable property found described in the schedule of the plaint, which is set out thus: SCHEDULE OF PROPERTY Kanchipuram District, Sriperumbudur Taluk in No.119, Kandhoor Village, 1.141/2A Dry 0.40 cents 2.141/3 Dry 0.82 cents 3.142/1 Dry 0.42 cents 4.134/B Dry 2.78 cents 5.141/2B Dry 0.73 cents 6.141/4B Dry 0.40 cents 7.141/7 Dry 0.55 cents 8.141/8A1 Dry 0.42 cents 9.142/3B Dry 0.77 cents (extracted as such) b]. A summation and summarisation of the averments in the plaint would run thus: An agreement to sell Ex.A1 emerged on 01.09.1999 between the plaintiff and the following seven persons:
1. J.Ponnammal 2. M.Jayarama Naicker 3. J.Devadasan 4. J.Gopu 5. J.Punniyakoti 6. R.Kumaravel 7. Manoharan for a total sale consideration of Rs.97,800/- stipulating a period of six months for performance and a sum of Rs.20,000/- was paid as advance under the said agreement to sell. The proposed seller was enjoined to sell the property free from encumbrance. However, subsequently, the plaintiff came to know that the third defendant created a mortgage loan in favour of Poonamallee Co-op.Primary Agricultural and Rural Development Bank, Chennai-56 for certain sum in respect of an extent of 2.32 acres comprised of Survey Nos.141/3, 142/1, 141/4B and 141/2B, which forms part of the suit property. Even though the plaintiff was ready and willing to perform his part of the contract by paying the remaining part of the sale consideration of Rs.77,800/-, the defendants were postponing the execution of the sale deed and they did not also take steps to discharge the mortgage loan. However, during the month of May 2003, the defendants' insisted for higher sale consideration, for which the plaintiff also agreed because he happened to be a real estate business man and that he had commitment with third parties. Accordingly, on 24.05.2003 the plaintiff made the following payments:
1. A sum of Rs.10,000/- was received by the 2nd defendant.
2. A sum of Rs.70,000/- was received by the 3rd defendant.
3. A sum of Rs.50,000/- was received by the 4th defendant.
4. A sum of Rs.47,850/- was received by the 5th defendant under three cheques. As such, the total amount paid was Rs.1,77,850/- on 24.05.2003 in addition to the sum of Rs.20,000/- already paid by the plaintiff to the defendants under the said agreement to sell. The defendants' undertook to clear the mortgage at an earlier date and execute the sale deed; but they failed to do so. Whereupon, the plaintiff himself discharged the loan of Rs.53,000/- and got back the original document from the said Bank on 01.12.2003. As such, the plaintiff paid the entire enhanced sale consideration and he was entitled to specific performance. It is also the contention of the plaintiff that even though Ex.A1 is a registered agreement yet under one other un-registered agreement, which emerged on the same day, the plaintiff was put in possession of the suit property as per Section 53-A of the Transfer of Property Act. As the pre-suit notice dated 26.05.2004, issued by the plaintiff evoked no response from the defendants, the suit was came to be filed. c]. Per contra, in a bid to make mincemeat and torpedo the case of the plaintiff, D3 filed the written statement, inveighing and challenging, impugning and refuting the averments/allegations in the plaint, which was adopted by the remaining defendants: Notwithstanding that the suit property stood in the name of Jayarama Naicker and D1-Ponnammal, by way of abundant caution all the children of the couple along with one other son of their pre-deceased son, were added as proposed sellers in the agreement to sell. There was an oral arrangement, under which, the total sale consideration of Rs.7,65,450/-, was agreed to be paid by the plaintiff to the defendants'; but the former failed to do so. The defendants are co-sharers of the suit property. The agreement to sell dated 01.09.1999 is not enforceable and it is barred by limitation. The plaintiff cannot plead protection under Section 53-A of the Transfer of Property Act. The plaintiff was not put in possession of the suit property under the said agreement. The encumbrance in favour of the Poonamallee Co-op.Primary Agricultural and Rural Development Bank, Chennai-56 was created by Jayarama Naicker and the defendants' discharged the said debt. At the time of execution of the agreement itself, the plaintiff was aware of such encumbrance. Within the limitation period, the plaintiff did not call upon the defendants to execute the sale deed, by expressing his readiness and willingness to perform his part of the contract. As such, the suit was barred by limitation. Accordingly, they prayed for the dismissal of the suit. d]. Whereupon issues were framed by the trial court. e]. Up went the trial, during which, the plaintiff examined himself as PW1 along with P.W.2 and marked Exs.A1 to A20. On the side of the defendants, D3 examined himself as DW1 and Exs.B1 to B15 were marked. f]. Ultimately, the trial court decreed the suit; as against which, the defendants' preferred the appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. g]. Challenging and impugning the judgments and decrees of both the fora below, the defendants have preferred this second appeal on various grounds and also suggesting the following substantial questions of law: a) Is the lower appellate court correct and justified in disposing of the appeal even framing proper point and arise for consideration and even without following the procedure laid down under Order 41 Rule 31 of CPC?. b) Are the courts below correct and justified in decreeing the suit for relief of specific performance especially when the plaintiff has not come to the court with clean hands?. c) Are the courts below correct and justified in holding that time is not the essence of the contract?. d) When payment as to balance of consideration has to be made on or before a particular time, will not failure to pay within that period disentitle the plaintiff from getting relief of specific performance?. e) Is not payment before time fixed a condition precedent failure of which would disentitle the plaintiff from getting the discretionary relief of specific performance?. f) Whether defendants acknowledgement is valid or invalid under Section 18 of the Limitation Act and whether it would give fresh period of limitation?. g) Are the courts below correct and justified in holding that the suit is not barred by limitation?. h) Are the courts below correct and justified in holding that plaintiff was ready and willing to perform his part of the contract?. i) On the face of cheques issued by the plaintiff being dishonoured for want of funds are the courts below correct and justified in still holding that plaintiff was ready and willing to perform his part of the contract?. j) On the face of the unexplained delay in filing the suit after notice are the courts below correct and justified in holding that the plaintiff was ready and willing and can discretionary relief be granted to such a person?. k) Are the courts below correct and justified in holding that plaintiff is protected under 53A of Transfer of Property Act especially when his possession is not traceable to the agreement?. l) Are the courts below correct and justified in relying on Ex.A2 when it is disputed and even before it is found to be true?. (extracted as such) 4. Heard both sides.
5. On perusal of the records and after hearing both sides, I thought fit to formulate the following substantial questions of law to the knowledge of both sides.
1. Whether both the fora below failed to take into consideration the distinction between, the two principles, viz., (i) time is not the essence of contract relating to immovable property; and (ii) the limitation period of three years for filing the suit for specific performance and whether they failed to evaluate the evidence to find out whether the plaintiff was ready and willing to perform his part of the contract as per Section 16 (c) of the Specific Relief Act?.
2. Whether the payments made under Exs.A3, A16, A17 and A18 attracted Section 18 of the Limitation Act so as to enable the plaintiff to file the suit?.
3. Whether the first or the second part of Article 54 of the Limitation Act was applicable in the facts and circumstances of this case?.
4. Whether the receipt of the amounts by D2, D3, D5 and D6 would bind D1 and D4 who were not in receipt of any amount from the plaintiff, and what was the effect of such receipt of money by D2, D3, D5 and D6 and whether a fresh agreement to sell could be discerned in the facts and circumstances of this case and if so, how far Section 12(3) of the Specific Relief Act could be pressed into service in the facts and circumstances of this case?.
5. Whether this court could mould the relief and grant the same in this factual matrix?.
6. Whether the courts below failed to apply Sections 16 (c) and Section 20 of the Specific Relief Act?.
7. Whether there is any perversity or illegality in the judgments and decrees of both the fora below?.
6. Both sides advanced elaborately arguments adverting to the aforesaid substantial questions of law.
7. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another. Inre factual background:
8. Indubitably and indisputably, Ex.A1, the agreement to sell emerged between the plaintiff, and the defendants including the deceased Jayarama Naicker. Pendente lite, D1 died and her legal heirs are already on record. In Ex.A1, the time stipulated for performance was six months and it was subject to the following conditions: VERNACULAR (TAMIL) PORTION DELETED (extracted as such) Till 24.05.2003, there is nothing on record to indicate that any written correspondence emerged between the plaintiff and the defendants. However, on 24.05.2003, as revealed by Exs.A3, A16, A17 and A18, D2, D3, D5 and D6 respectively received various amounts totalling to a tune of Rs.1,77,850/- additionally, over and above the sum of Rs.20,000/- which was paid as advance under the said agreement. Admittedly, D1 and D4 did not sign those endorsements.
9. The learned senior counsel appearing for the plaintiff would strenuously argue to the effect that the conduct of the parties should be taken into account in the facts and circumstances of this case as the act of D2, D3, D5 and D6 in receiving the additional amounts over and above the total sale consideration contemplated under Ex.A1 would connote and denote, exemplify and demonstrate that they received not only on their behalf such additional amounts but on behalf of D1 and D4 and that they expressed their desire to honour Ex.A1 and only with the help of the plaintiff, the said encumbrance over the suit property was discharged. At the time of making such endorsements, no time for performance was stipulated. Over and above that the conditions as found set out in Ex.A1 that the defendants should execute the sale deed free from encumbrance would indicate and exemplify, convey and portray that till the encumbrances are cleared, the question of limitation commencing would not arise at all. As such, part II of Article 54 of the Limitation Act could rightly be pressed into service and accordingly, both the courts below correctly decided the lis, warranting no interference in this second appeal, and the concurrent finding of facts need not be interfered with.
10. Refuting and inveighing such arguments, the learned counsel for the defendants would submit that in the agreement to sell itself, six months' period was contemplated as the one for performance and in such a case the first part of Article 54 of the Limitation Act would automatically come into play. In this factual matrix, it has to be taken that the limitation period for filing the suit was six months plus three years, which got expired by 01.03.2003 and before that date absolutely there was no correspondences, which could evince and evidence that there was extension of time within the meaning of Section 18 of the Limitation Act. Wherefore, mere endorsements made by D2, D3, D5 and D6 on 24.05.2003 cannot be taken as the ones saving the limitation in favour of the plaintiff to file the suit for specific performance. Accordingly, he would argue that both the fora below fell into error in not considering this significant point and they were carried away by the fact that time was not the essence of the contract of agreement to sell in regard to immovable properties are concerned and decided the lis wrongly.
11. On the side of the plaintiff, the learned senior counsel cited the decision of the Hon'ble Apex court reported in (2006)5 SCC340[Panchanan Dhara and others vs. Monmatha Nath Maity (dead) through Lrs. And another].. Certain excerpts from it would run thus: ".17. So far as the question of limitation is concerned, the learned Trial Judge held: The letters sent by the plaintiff or his brothers on behalf of the plaintiff (ext. 8 to 11), the letter of chairman director Purushattam Roy (ext. 7) coupled with the fact of non issuing of any notice by defendant No.1 estate repudiating that contract proved beyond any trace of doubt that the agreement between plaintiff and defendant No.1 estate was subsisting and was still in force and that the suit was nor barred under Article 54 of Limitation Act.
18. We may notice that the learned First Appellate Court as regards the Appellants contention that the suit was barred by limitation held: Next, it was vehemently argued before this court that the suit is barred by limitation as it was recited in ext.3 that the transfer would be effective within 14 months after execution of the bainanama (Ext. 3). But the argument is not tenable in view of the fact that the time has been expanded by the respondent No.2 impliedly by agreeing to transfer of the suit property as and when time comes. The respondent No.1 and his brother dispatched several letters (Ext. 8, 9, 10, 11) to the respondent No.2 for transfer to the suit property to them. Ultimately, by ext. 7( a letter sent by the company to the respondent No.1) the company has agreed to extend the time giving the respondent No.1 assurance that just in time transfer would be made effective. Ext. 7 also suggests that the letters (ext 8, 9, 10, 11) sent by the respondent No.1 and his brothers were received by the company, respondent No.2. Thus, it can be said safely that the time which was recited in the ext - 3 was extended by respondent No.2 by ext-7 and moreover, ext-3 suggests unequivocally that time is not essence of the contract. Had the time being the essence, the words subject to perfection on the title of the respondent No.2 of the suit property would not have occurred in ext -2. Therefore, when the ld. Munsif has discussed this point in this light this court sees nothing to interfere.
19. The High Court has also accepted the said reasonings of the learned lower appellate court stating: As regards the second point urged by Mr. Mukherjee, in my opinion, the same is also without any force. The respondent No.1 having made specific case that the company refused to perform its part of the contract in the year 1985 and having produced letters written on behalf of the company showing that the agreement was subsisting and no person having come forward to deposed on behalf of the company to convert those statements, in my opinion, the learned courts below rightly found that the suit is not barred by limitation.
20. Contention of Mr. Mishra as regard the applicability of the first or the second part of Article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in disputed that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1964. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom.
21. In this, case before the Trial Court, the parties proceeded on the basis that the Second Respondent herein refused to execute and register a deed of sale in terms of the said agreement on 21.8.1985. The courts below have also arrived at a finding of fact that the time for performance of the said agreement for sale had all along been extended and even as on 16.3.1985, a Director of the Second Respondent assured the First Respondent that it would be honored. In a suit for specific performance of contract in respect of any immovable property, time would ordinarily not be the essence of the contract. The Appellant herein also did not raise any plea to the said effect.
22. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the First Respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would being to run from the date of perfection of title.
27. Performance of a contract may be dependent upon several factors including grant of permission by the statutory authority in appropriate cases. If a certain statutory formality is required to be complied with or permission is required to be obtained, a deed of sale cannot be registered till the said requirements are complied with. In a given situation, the vendor may not be permitted to take advantage of his own wrong in not taking steps for complying the statutory provisions and then to raise a plea of limitation.
28. An almost identical question came up for consideration before a Division Bench of this Court in S. Brahamanand and Others v. K.R. Muthugopal (Dead) and Others [(2005) 12 SCC764 wherein this Court laid down the law: Thus, this was a situation where the original agreement of 10-3-1989, had a fixed date for performance, but by the subsequent letter of 18-6-1992 the defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Contract Act, 1872 provides that every promise may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of conduct including forbearance on the part of the other party. Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the article...
29. In R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy [(2006) 2 SCALE156, wherein one of us was a member, it was observed: In terms of the said Article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused. The notice dated 24.04. 1984, thus, is required to be construed in the context of the agreement dated 13.10.1982 entered into by and between the parties. There cannot be any doubt whatsoever that in respect of a contract for sale of immovable property, time is not of the essence of the contract, but the question as regard the conduct of the Appellant must be considered in the backdrop of the events noticed hereinbefore.
30. The said decision has again been noticed in Gunwantbhai Mulchand Shah & Ors. v. Anton Elis Farel & Ors. [(2006) 3 SCALE82 wherein it has been held: We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy 2006 (2) Scale 156. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they do not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence, on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial. ".
12. The learned senior counsel for the plaintiff drawing the attention of this court to the factual matrix involved in that precedent would pyramid his argument that in that case, the agreement to sell emerged as early as on 18.04.1971; whereas the suit itself was filed after 1985, even though the time contemplated therein was 14 months for performance; the Hon'ble Apex Court held in that case that Part II of the Article 54 of the Limitation Act was applicable. According to him, the said precedent fittingly applies to the facts and circumstances of this case.
13. Whereas the learned counsel for the defendants would try to distinguish and differentiate the said decision in the wake of the factual circumstances involved in this case by pointing out that there the seller company instituted the suit, soon after the emergence of the agreement to sell, so as to clear the cloud over the title concerning the property and the litigation went on up to 1979 and that there were some correspondences emerged between the parties, whereby the seller agreed to sell the property and they never expressed their refusal to perform their part of the contract. Whereupon only, the Hon'ble Apex Court held that Part II of Article 54 of the Limitation Act was applicable. But here the position is entirely different. In this matter, no such litigation was initiated by the defendants and there was only a mortgage encumbrance and within the limitation period, the plaintiff ought to have approached the court for specific performance; but he failed to do so.
14. I would like to agree with the ratiocination adhered to by the learned counsel for the defendants in interpreting the judgment of the Hon'ble Apex Court cited supra. The cited precedent would refer to the fact that there were correspondences, which emerged between the seller company and the purchaser and at no point of time, the seller company expressed its refusal to perform its part of the contract and hence Part II of Section 54 of the Limitation Act was applied.
15. Here, the evidence unambiguously and unequivocally would highlight and spotlight the fact that within the short period of three months from the date of emergence of Ex.A1 itself, PW1 the plaintiff was aware of such mortgage; but he had not raised his little finger in calling upon the defendants to discharge such mortgage and come forward to execute the sale deed. No doubt, the learned senior counsel for the plaintiff would inviting the attention of this court to the deposition of PW1 would submit that incessant oral demands were made by the plaintiff calling upon the defendants to honour the agreement, which the latter failed to do so.
16. In my considered opinion such bald statement made by the plaintiff would remain only his ipse dixit. Assuming for argument's sake that the plaintiff made such oral demands, there is nothing to indicate and exemplify as to what prevented him from issuing at least the lawyer's notice or personal letter to the defendants calling upon them to perform their part of the contract. Absolutely, there is no smudgeon or iota of evidence to buttress and fortify his stand that he made incessant demands and despite that the defendants' postponed the execution of the sale deed. Over and above that in the plaint itself, in para No.7, he would state that he made oral demands; but the defendants' postponed the performance, which itself would constitute the cause of action for the plaintiff to file the suit for specific performance. Whereas the other side would deny such demands allegedly made by the plaintiffs. Wherefore, in the absence of clinching evidence it cannot be taken that even before the limitation period of three years and six months, the defendants' agreed to execute the sale deed or that they agreed for extending the period for performance of the contract.
17. The endorsements on 24.05.2003 made by D2, D3, D5 and D6 in the form of Exs.A3, A16, A17 and A18 are the evidence available on record and from that what this court could discern and understand is that, that will not be sufficient to attract the application of Section 18 of the Limitation Act, 1963 as those endorsements emerged long after three years and six months' period which expired on 01.03.2003.
18. The learned senior counsel for the plaintiff placing reliance on Section 53-A of the Transfer of Property Act would canvass his argument to the effect that the position of the plaintiff being safe as he was put in possession of the suit property, he was not under any constraint to pull a fast one or hurry up the matter and that too when the defendants sought for postponement of the execution of the sale deed.
19. Rebarbative as it is, according to the learned counsel for the defendants, he would try to put forth his arguments perhaps unsatisfactorily that there was no actual handing over of possession of the suit property under Section 53-A of the Transfer of Property Act as per the agreement to sell, for which the learned senior counsel for the plaintiff would appropriately and appositely, correctly and convincingly draw the attention of this court to the deposition of DW1 (D3) and also Ex.A2, the unregistered agreement to sell dated 01.09.1999 and point out that it was an admitted fact that possession of the suit property was given to the plaintiff by the defendants. In the wake of the concurrent findings of fact by both the courts below, under Section 53-A of the Transfer of Property Act concerning the possession of the plaintiff over the suit property, I am of the considered view that no interference is required relating to such a finding is concerned.
20. Simply because Section 53-A of the Transfer of Property Act could be pressed into service by the plaintiff that it does not mean that he was exonerated or absolved from his duty of filing of suit within the limitation period, so to say, 3 1/2 years in this case and as such by merely placing reliance on Section 53-A of the Transfer of Property Act, the plaintiff cannot try to bypass the limitation period of 3 1/2 years for getting the original agreement to sell Ex.A1 enforced.
21. The following decisions emerged relating to Section 18 of the Limitation Act, 1963 could fruitfully be cited: (i) AIR1974Madras 191 (Ghourinissa and others vs. S.J.Kirmani) . An excerpt from it would run thus: ".3. As we have pointed out already, even according to the respondent, the borrowing took place between 25.06.1958 and 15.09.1958. In the plaint itself, the respondent had given the details of the borrowing. He had also stated that on 24.2.1959 the deceased has paid a sum of Rs.600/- towards the outstanding leaving a balance of Rs.5,490/-. It is this amount with interest the respondent claimed in the present suit. In paragraph 5 of the plaint the respondent had stated that he had been calling upon the deceased for payment and that in response to one such letter, the deceased wrote a post-card dated 27.7.1961 wherein inter alia he had stated that he would pay whatever might be found due as owning by him to the respondent on taking accounts. He reiterated the same position in the said paragraph by stating that in the said letter dated 27.7.1961 the debtor had made an express promise to pay the plaintiff (the respondent herein) whatever might be found due on account taking within the meaning of Section 25 of the Indian Contract Act. But the case of the appellants was that the said post-card would not constitute either an acknowledgement coming within the scope of Section 18 of the Limitation Act, or an express promise to pay coming within the scope of Section 25 of the Indian Contract Act. Consequently, the only question for consideration is whether the post-card dated 27.7.1961, which has been marked as Ex.A-1 constitutes an acknowledgement of the liability to pay the debt as contemplated by Section 18 of the Limitation Act of 1963.
4. ............................................. The relevant portion of Ex.A-2 which is necessary to be considered in this context, is as follows: ".You had told me to come so that you may talk over the matter with me. I could not go over to you because I was unable to secure money. As you people will ask me I will pay your money accordingly. I would not specify by saying that I would pay so much. Please do as you would consider proper and desirable". It is this passage in Ex.A2 which has been relied upon as constituting both an acknowledgement and an express promise to pay, which found favour with the trial court. But, we are clearly of the opinion that this does not constitute either an acknowledgement or an express promise to pay. In the first place, the above extract does not clearly show that the deceased was admitting, or acknowledging the existence of a jural relationship of debtor and creditor between him and the respondent herein. As a matter of fact, the expression ".as you people will ask me". will clearly indicate that it is not something referable to the borrowing by the deceased from the respondent herein. ..........................................................................................................................................................................................................................................................................................
6. ..........................Taking all these circumstances together, we are clearly of the opinion that Ex.A1 does not constitute an acknowledgement as contemplated by Section 18 of the Limitation Act so as to save the suit from the bar of limitation. If Ex.A1 does not constitute an acknowledgement of liability, a fortiori it cannot constitute an express promise to pay coming within the scope of Section 25(3) of the Contract Act.". (ii) AIR1999SC1047[Sampuran Singh and others vs. Niranjan Kaur and others].. Certain excerpts from it would run thus: ".9. In his endeavour, learned counsel for the appellants, referred to Section 18 of the Limitation Act to hold that the acknowledgement by the original mortgagees to the respondents, through the said registered document dated 11th January 1960, the period of limitation is revive which would only start from that date of acknowledgement hence the suit filed in the year 1980 would be within limitation. The said submission is without any force. Section 18, sub-section (1), itself starts with the words Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made..... . Thus, the acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing the suit, in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement. In the present case, admittedly, the oral mortgage deed is in March 1893. If the period of limitation for filling suit for redemption is 60 years then limitation for filing a suit would expire in the year 1953. Thus, by the execution of this document dated 11th January 1960 it cannot be held by virtue of Section 18 that the period of limitation is revived afresh from this date.". (iii) AIR2008SC1363[J.C.Budhraja vs. Chairman Orissa Muncipal Corporation Ltd., and another].. Certain excerpts from it would run thus: ".14. Section 18 of the Limitation Act, 1963 deals with effect of acknowledgement in writing. Sub-section (1) thereof provides that where, before the expiration of the prescribed period for a suit or application in respect of any right, an acknowledgement of liability in respect of such right has been made in writing signed by the party against whom such right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. The explanation to the section provides that an acknowledgement may be sufficient though it omits to specify the exact nature of the right or avers that the time for payment has not yet come or is accompanied by a refusal to pay, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the right. Interpreting section 19 of the Limitation Act, 1908 (corresponding to section 18 of the Limitation Act, 1963) this Court in Shapur Fredoom Mazda v. Durga Prosad Chamaria (AIR1961SC1236, held : .............". acknowledgement as prescribed by section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear, then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. Stated generally, courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning.". In construing words used in the statements made in writing on which a plea of acknowledgement rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. The effect of the words used in a particular document must inevitably depend upon the context in which the words are used and would always be conditioned by the tenor of the said document ..
15. It is now well settled that a writing to be an acknowledgement of liability must involve an admission of a subsisting jural relationship between the parties and a conscious affirmation of an intention of continuing such relationship in regard to an existing liability. The admission need not be in regard to any precise amount nor by expressed words. If a defendant writes to the plaintiff requesting him to send his claim for verification and payment, it amounts to an acknowledgement. But if the defendant merely says, without admitting liability, it would like to examine the claim or the accounts, it may not amount to acknowledgement. In other words, a writing, to be treated as an acknowledgement of liability should consciously admit his liability to pay or admit his intention to pay the debt. Let us illustrate. If a creditor sends a demand notice demanding payment of Rs.1 lakh due under a promissory note executed by the debtor and the debtor sends a reply stating that he would pay the amount due, without mentioning the amount, it will still be an acknowledgement of liability. If a writing is relied on as an acknowledgement for extending the period of limitation in respect of the amount or right claimed in the suit, the acknowledgement should necessarily be in respect of the subject matter of the suit. If a person executes a work and issues a demand letter making a claim for the amount due as per the final bill and the defendant agrees to verify the bill and pay the amount, the acknowledgement will save limitation for a suit for recovery of only such bill amount, but will not extend the limitation in regard to any fresh or additional claim for damages made in the suit, which was not a part of the bill or the demand letter. Again we may illustrate. If a house is constructed under the item rate contract and the amount due in regard to work executed is Rs. two lakhs and certain part payments say aggregating to Rs.1,25,0000/- have been made and the contractor demands payment of the balance of Rs.75,000/- due towards the bill and the employer acknowledges liability, that acknowledgement will be only in regard to the sum of Rs.75,000/- which is due. If the contractor files a suit for recovery of the said Rs.75,000/- due in regard to work done and also for recovery of Rs.50,000/- as damages for breach by the employer and the said suit is filed beyond three years from completion of work and submission of the bill but within three years from the date of acknowledgement, the suit will be saved from bar of limitation only in regard to the liability that was acknowledged namely Rs.75,000/- and not in regard to the fresh or additional claim of Rs.50,000/- which was not the subject matter of acknowledgement. What can be acknowledged is a present subsisting liability. An acknowledgement made with reference to a liability, cannot extend limitation for a time barred liability or a claim that was not made at the time of acknowledgement or some other liability relating to other transactions. Any admission of jural relationship in regard to the ascertained sum due or a pending claim, cannot be an acknowledgement for a new additional claim for damages. ". A mere running of the eye over those precedents would project that to attract Section 18 of the Limitation Act, there should be clear evidence in writing extending the period of limitation and that should be in the form of acknowledgement. But no such evidence is available. As such, it is glaringly and plainly clear that it cannot be construed that such endorsements made by D2, D3, D5 and D6 and that too beyond the period of limitation would save the limitation of three years' period contemplated under part I of Article 54 of the Limitation Act.
22. Wherefore, I am of the considered view that it is clear that any endorsement made after the limitation period would not save the limitation period to get specifically enforced Ex.A1, the agreement to sell. The maxim in re dubia magis infitiatio quam affirmatio intelligenda [In a doubtful matter, the negation is to be understood rather than the affirmation]. could fruitfully be recollected and over and above that in respect of Ex.A1, there is nothing to establish and prove that the plaintiff complied with Section 16 (c )of the Specific Relief Act and thereby made himself eligible for getting relief under Section 20 of the Specific Relief Act.
23. The following precedents of the Hon'ble Apex Court could rightly be cited. (i) 2010(10) SCC512[Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha].; certain excerpts from it would run thus: ".40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not ".ready and willing". to perform his obligations.". (ii) (2011) 1 SUPREME COURT CASES429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus: ".27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. ".Readiness and willingness". to perform the part of the contract has to be determined/ascertained from the conduct of the parties.". This case is not a case where any reason has come in as to why there was a longish period of lull in getting Ex.A1 enforced. Inre Exs.A3, A16, A17 and A18 and the fresh agreement:
24. The next phase of analysis is focussed as to what is the effect of D2, D3, D5 and D6 endorsements having been made after receipt of such huge amounts and also, as revealed by evidence in helping the plaintiff to discharge the mortgage over the suit property. It could rightly be construed and discerned that the plaintiff and D2, D3, D5 and D6 cumulatively with their joint effort discharged the mortgage created in respect of the suit property.
25. Both the courts below failed to take into account these significant points which are not poccurante ones, but they simply considered as though the two principles viz., (i) the time is not the essence of the contract for seeking specific performance of the agreement to sell and (ii) the limitation period of three years to file the suit for specific performance are one and the same. There is a chasm between the two, and it is not as though the distinction sought to be made is one between six of the one and a half a dozen of the other or tweedledum and tweedledee, but it is one that of chalk and cheese. The principle that time is not the essence of the contract for filing the suit for specific performance, would mean that if any time is stipulated for filing the suit in the agreement to sell and the suit is filed within the limitation period of three years from that stipulated period, then the time would not be considered as the essence of contract subject to plaintiff satisfying the ingredients of Section 16 (c) and Section 20 of the Specific Relief Act. Wherefore it cannot be construed that there is no limitation period at all for filing the suit for specific performance.
26. The learned senior counsel for the plaintiff would place reliance on the fact that while making endorsements by D2, D3, D5 and D6 in EXs.A3, A16, A17 and A18 there was no stipulation relating to time for performance. I would observe that only with regard to the fresh contract/agreement which emerged between the plaintiff on the one side and D2, D3, D5 and D6 on the other side as per those endorsements, it could be construed that no time was stipulated for performance, but that cannot be taken as the one capable of reviving the cause of action, which already got expired concerning Ex.A1, wherein the period of performance was stipulated as six months. The courts below also did not take into consideration the effect of such endorsements made by D2, D3, D5 and D6 over the rights of D1 and D4.
27. In this connection, the learned senior counsel for the plaintiff would try to press into service Sections 196 and 197 of the Indian Contract Act,1872 which are extracted here under for ready reference:
196. Right of person as to acts done for him without his authority Effect of ratification Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.
197. Ratification may be expressed or implied Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done.
28. In my considered opinion, those provisions cannot be pressed into service because those provisions are under the law of agency. Unless there is a power of attorney executed by the owner in favour of another in respect of an immovable property, the question of the latter acting on behalf of the former would not arise. There is also no scintilla or pint of evidence to indicate or connote that D1 and D4 ever agreed to any extension of time for performance of the contract or for fresh agreement.
29. In view of the finding that the original contract as found envisaged in Ex.A1 was not enforceable in view of the bar of limitation, this court has to consider as to what was the effect of the endorsements made by D2, D3, D5 and D6 in Exs.A3, A16, A17 and A18. No doubt, as has been correctly argued by the learned senior counsel for the plaintiff, the case of the plaintiff is not that of a new contract emerged in view of the endorsements made. Inre moulding the relief based on fresh agreement and granting the same:
30. At this juncture, I would like to point out that the court, which is seized of the matter has to render justice. Every trial is a voyage of discovery in which truth is the quest, as found highlighted and denoted in the following judgments rendered by the Hon'ble Apex Court: (i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.]. Certain excerpts from it would run thus: ".36. In Ritesh Tiwari and another vs. State of Uttar Pradesh and others,2010(10) SCC677 this court reproduced often quoted quotation which reads as under: ".Every trial is voyage of discovery in which truth is the quest"..
37. This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB55has observed that: ".In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.".
39. Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that ".every trial is a voyage of discovery in which truth is the quest.". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
51. In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.". (ii) 2010(10) SCC677[Ritesh Tiwari and another vs. State of Uttar Pradesh and others].. Certain excerpts from it would run thus: ".37. Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. ".Every trial is voyage of discovery in which truth is the quest".. Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and Zahira Habibulla H.Sheikh vs. State of Gujarat]..
31. The Division Bench judgment of this court reported in 1996-2-L.W.836 [Mohamed Akbar Batcha Sahib vs. Y.Nagarajan]. concerning moulding of the relief and granting the same in specific performance suits could fruitfully be cited. Certain excerpts from it would run thus:
1. ..............".The purchaser filed an appeal in this court which was disposed of by a single Judge. The learned Judge held that the plaintiff is entitled to a decree for specific performance of the contract with reference to the undivided half share by the vendor on payment of one half of the total consideration. The learned Judge has exercised his power under O.7, R.7, C.P.C., to mould the relief prayed for by the plaintiff and grant appropriate relief and consequently, he set aside the direction given by the lower court for refunding the advance and passed a decree for specific performance with reference to the vendor's half share in the property on payment of Rs.7625.50 which represented the balance out of one half of the total consideration. The aggrieved defendant has filed this appeal while the plaintiff has preferred a memorandum of cross-objections.
8. It is seen from the above clause that the court can direct specific performance of the agreement with reference to the part which can be performed for consideration reduced by the a mount for the part which has to be left unperformed. In this case, it is not in dispute that the defendant and his brother are equally entitled to the property and when the defendant is allowed to execute a sale deed with reference to his undivided half share, the consideration shall be reduced to a half and that is what has been done by the learned single Judge in the appeal.
9. We have no hesitation to hold that there is no merit either in the appeal or in the Memorandum of cross-objections. Hence, both are dismissed. There will be no order as to costs.". (ii) One other decision of this court reported in 1970(II) MLJ639[V.R.Thulasai Sah and others vs. Sri Katchapeswaraswamy Devasthanam by its Executive Officer and others].
32. I call up and recollect the maxim lex semper dabit remedium The law will always give a remedy. Inre application of Section 12 (3) of the Specific Relief Act:
33. The court, wherefore, has got power to mould the relief and grant the same. In the wake of my discussion supra, Section 12(3) of the Specific Relief Act also can be pressed into service. In this connection, I would like to refer to Section 12 of the Specific Relief Act as well as the decisions emerged thereunder: ".12. Specific Performance of part of contract - (1) ......... (2) ....... (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either - (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party - (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contact reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), [pays or has paid]. the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.". (i) (2001)8 SCC173[Rachakonda Narayana vs. Ponthala Parvathamma and another].. Certain excerpts from it would run thus: ".8. A perusal of sub-section (3) of Section 12 shows that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. However, latter part of the provisions permits a Court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. If a suit is laid by the other party, the court may direct the defaulting party to perform that part of the contract which is performable on satisfying two preconditions, i.e., (i) the plaintiff pays or has already paid the whole of the consideration amount under the agreement and that (ii) plaintiff relinquishes all claims to the performance of other part of the contract which defaulting party is incapable to perform and all rights to compensation for loss sustained by him. Thus, the ingredients which would attract specific performance of the part of the contract, are : (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent and (ii) the other party to an agreement must, in a suit for such specific performance, either pays or has paid the whole of the agreed amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of other part of contract which defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or latches or any other disability on the part of other party.
9. Now, the question is whether relief under Section 12(3) of the Act is required to be pleaded in the plaint when the suit is laid or it can also be taken at the appellate stage. The view taken by the High Court is the readiness and willingness to perform the terms of the contract by the plaintiff based on latter part of sub-section (3) of Section 12 must be pleaded in the plaint itself when the suit is laid and in its absence the relief being discretionary cannot be granted by amendment of the plaint at the appellate stage. In Kalyanpur Lime Works Ltd. v. State of Bihar an identical question came up for consideration before the Supreme Court. In the said case, the Apex Court held that relief based on Sections 13, 14, 15 and 17 of the Specific Relief Act, 1877 can be granted at any stage of the litigation. In A.L. Parthasarathi Mudaliar v. Venkata Kondiah Chettiar, it is held that it is open to plaintiff to relinquish the part of the performance of the contract after paying the entire consideration of the contracted amount at the appellate stage of the proceedings if the defaulting party is not capable to perform the whole of the contract.". (ii) (2005) 8 SCC486[P.C.Varghese vs. Devaki Amma Balambika Devi and others].. Certain excerpts from it would run thus: ".32. The submission of Mr. Reddy to the effect that the learned Trial Judge committed a serious error in granting a decree for partition along with a decree for specific performance of contract need not detain us long as in view of Section 22(1)(a) of the Act a decree for partition and separate possession of the property can be granted in addition to a decree for specific performance of contract. As in this case, the Appellant herein in view of amended prayer C relinquished his claim in respect of the property belonging to the minor - Respondent No.4, he also prayed for a decree for partition and such a prayer having been allowed, no exception thereto can be taken. In any event the said question has not been raised by the Respondents before the High Court at all. Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession and/or partition in a suit for specific performance. Even though strictly speaking the right to possession accrues only when a suit for specific performance is decreed, undisputably such a decree for possession and/or partition is prayed for in anticipation of the grant of prayer for specific performance of contract. [See Babu Lal Vs. M/s Hazari Lal Kishori Lal and Others (1982) 1 SCC525.
35. Before parting with this case, however, we may observe that the manner in which the decree has been passed by the learned Trial Court is open to question inasmuch as a relief in terms of Section 22 of the Specific Relief Act being incidental or ancillary to the main relief of specific performance of contract and, furthermore, being in addition thereto, ordinarily, a proceeding for grant of a final decree for partition should be initiated after the sale deed in terms of the decree for specific performance of contract is executed and registered and not vice-versa. ". (iii) Unreported judgment of this court dated 14.03.2012 rendered in A.S.No.250 of 2007 [A.S.M.Balasubramanian vs. S.P.Swaminathan]. , wherein the following decisions are also referred to in respect of Section 12 (3) of the Specific Relief Act. (i) 2012 (1) LW231(SC) [ Shanker Singh vs. Narinder Singh and others]. (ii) 2009 1 CTC803(Madras High Court) [ K.R.Venugopal vs. K.R.Srinivasan and 4 others]. (iii) AIR2004SC3858[H.P.A.International vs. Bhagwandas Fatech Chand Daswani and others]. (iv) (2003) 4 SCC86[ M.V.Shankar Bhat and another vs. Claude Pinto since (deceased) by Lrs. And others) (v) (1990) 3 SCC517[ Kartar Singh vs. Harjinder Singh and others]. (vi) 2005 AIR SCW5447[ S.Brahmanand and others vs. K.R.Muthugopal (D) and others]. (vii) 2001 AIR SCW2361[A.Abdul Rashid Khan (dead) and others vs. P.A.K.A.Shahul Hamid and others]. (viii) (1996) 8 SCC365[D.S.Thimmappa vs. Siddaramakka]. (ix) 1993-1-L.W.599 [P.Alagesan & 5 others vs. A.Mariadas and 6 others]. (x) 2005 AIR SCW5622[P.C.Varghese vs. Devaki Amma Balambika Devi and others]. (xi) 2005 (1) CTC753[Arulraj and others vs. Jabesthial]. (xii) 1995-2-L.W.50 [Vairavan vs. K.S.Vidyanandam and 3 others]. (xiii) AIR2011SC103[Kammana Sambamurthy (deceased by L.Rs.) vs. Kalipatnapu Atchutamma (deceased by L.R) and others]. (xiv) (1921) 2 MLJ129 Full Bench [Baluswami Aiyar vs. Lakshmana Aiyar and others]. (xv) AIR1973Madras 393 [Subramani vs. Kannappa Reddiar and others]. (xvi) Unreported judgment of this court dated 08.02.2011 passed in S.A.No.1150 of 1997[Govindasamy Gounder vs. Annamalai and another]. (xvii) (2005) 5 SCC142[Surinder Singh vs. Kapoor Singh (dead) through L.Rs,. And others].
34. It springs in my mind that Section 12 (3) of the Specific Relief Act could rightly be pressed into service in view of the aforesaid decisions and that too in the factual matrix as stood uncurtained and unveiled. A judgment has to be put on an even keel accordingly, the plaintiff, even though paid the whole consideration for the entire property, he has to be satisfied with the execution of the sale deed by way of specific performance in respect of 2/3 portion of the suit property.
35. To disambiguate the ambiguity if any, I observe that it is also well settled in view of the precedents cited supra that the plaintiff should be given liberty to get the plaint amended and accordingly get the decree for specific performance in respect of 2/3 portion of the suit property.
36. The learned counsel for the defendants would argue that once it is found that, Ex.A1 cannot be enforced then the entire suit has to be dismissed and the endorsements made by D2, D3, D5 and D6 would not in any way enure to the benefit of the plaintiff for getting any relief.
37. I would like to discountenance such an argument as put forth on the side of the defendants for the simple reason that the defendants voluntarily and volitionally accepted the amounts far higher than the original sale consideration of Rs.97,800/- agreed under Ex.A1. Thus the defendants cannot dilly dally or shilly shally with the matter after making such endorsements on 24.05.2003 and which cannot also be pooh-poohed or belittled, slighted or discarded or simply ignored as though it emerged out of a child's play. An adult and that too an educated person is expected to know the consequence of his act and the defendants cannot disown their liability.
38. It is not as though they could not see the wood for trees. As on the date of making such endorsements, they had in their mind the requisite animus that the suit property should be sold to the plaintiff and with that consensus alone they made such endorsements and the evidence on both sides would convey that the encumbrance also was discharged with the joint effort of the plaintiff and those defendants.
39. My mind is reminiscent and redolent of the following maxim Acta exteriora indicant interiora secreta Outward acts indicate the thoughts hidden within.
40. All these facts cumulatively and conjointly constitute the conduct of the parties, which would enable the court to discern and infer that there emerged a fresh agreement to sell the suit property by the defendants 2, 3, 5 and 6 in favour of the plaintiff.
41. It is as thoroughly settled as any proposition of law could be or in other words, it is dime a dozen proposition of law that an agreement to sell in those days can even be oral. As such,the proven facts engenders to the irresistible conclusion that the plaintiff and D2, D3, D5 and D6 intended consciously and volitionally that the suit property should be sold by the defendants in favour of the plaintiff.
42. Both the courts below erroneously felt as though the original agreement Ex.A1 as such was enforceable, which is totally antithetical to the well established principles discussed supra.
43. The next question arises is as to whether D2, D3, D5 and D6 had the authority to bind D1 and D4. The maxim Qui facit per alium facit per se- A person who acts through another acts himself, can be pressed into service, only if there is any power deed executed by D1 and D4 in favour of the defendants to act on behalf of the former by the latter in respect of their shares in the suit property. Axiomatic and obvious as it is, that D1 and D4 never executed any power deed or executed any authorisation in favour of the other defendants to act on their behalf. In such a case, the shares of D1 and D4 over the suit property even by phantasmagorical thoughts cannot be construed and understood as the ones got affected by the conduct of the other defendants.
44. As such, D1 and D4 cannot be held to be bound by those endorsements, which would bind only D2, D3, D5 and D6 in respect of their shares over the suit property. Inre the share of Jayarama Naicker vis a vis the share of D1:
45. Incontrovertibly and unarguably, the suit property originally was projected as the property belonging to seven persons referred to supra. Even before such endorsements were made by D2, D3, D5 and D6, the said Jayarama Naicker died; whereupon on his death his 1/7 share got devolved upon the remaining six sharers equally, and the endorsements made by D2, D3, D5 and D6 would have binding effect on those four defendants only in respect of their 4/6 shares, so to say, 2/3 shares in the entire suit property and not in respect of the remaining 2/6 or 1/3 share, which belonged to D1 and D4.
46. A question might arise as to what would be the effect of deceased D1's share pendente lite. Any lis has to be decided taking into account the cause of action, which accrued as on the date of filing of the suit.
47. As on the date of the filing of the suit D1 was very much alive; pendente lite D1 died and wherefore D1's share got devolved upon the other defendants, but that is not germane for deciding this case. D2, D3, D5 and D6 while making those endorsements were having right only to the extent of 2/3 shares in the suit property and not in respect of the share of D1.
48. To the risk of repetition and pleonasm, but without being tautologous, and however to distinguish and differentiate the share of Jayarama Naicker with that of the share of D1, I would highlight and indicate that even before making such endorsements, Jayarama Naicker died and his share got devolved upon them and wherefore their endorsements could validly bind only to the extent of their 2/3 shares in the suit properties.
49. As such, I am of the considered view that the plaintiff has got the right to seek specific performance of the suit property to the extent of 2/3 shares in it and accordingly, carve out the same in his favour.
50. Evidence on record bespeaks and betokens that by making such endorsements by D2, D3, D5 and D6 they did not commit any mistake or fault but in fact they at their level and legal capacity virtually expressed their willingness to sell the suit property and in fact the plaintiff should have been diligent in getting signatures of D1 and D4 on such endorsements but he failed to do so. Wherefore, a deep reading of Section 12 (3) of the Specific Relief Act would connote and denote that the plaintiff, if he wants to get specific performance of such new agreement to sell in respect of 2/3 portion of the suit property, he should part with the entire sale consideration agreed without any proportionate reduction concerning the left out 1/3 portion of the suit property. For the inability of the plaintiff to get specific performance of the agreement to sell in respect of the said remaining 1/3 portion of the suit property, the defendants 2, 3, 5 and 6 cannot be mulcted with liability to pay compensation within the meaning of Section 12 (3) of the Specific Relief Act.
51. In my opinion, before this court itself the said exercise can be undertaken; but this court being the High Court and second appellate court is of the considered view that by setting aside the judgment and decree of the first appellate court, the matter could be remanded back to the first appellate court giving liberty to the plaintiff to get the plaint amended incorporating the ingredients as contained in Section 12 of the Specific Relief Act and also by way of committing himself in black and white that he would not insist for specific performance for the remaining 1/3 share in the suit property and that he would not claim any damages and accordingly get the decree under Section 12 (3) of the Specific Relief Act without any further additional evidence or trial for the 2/3 portion only and such a formality can be got carried out before the first appellate court. On passing of the decree for specific performance of the agreement to sell to the extent of 2/3 share in the suit property by the first appellate court, the plaintiff should get the sale deed executed in his favour accordingly and thereafter apply to the court under section 22 of the Specific Relief Act for getting carved out his 2/3 share in the suit property.
52. Accordingly, by setting aside the judgment and decree of the first appellate court, the matter is remanded back to the first appellate court to do the needful as per law. The first appellate court shall do well to see that the matter is disposed of within a period of three months from the date of receipt of a copy of this order.
53. Before parting with this case, I would like to spotlight and observe that there is a serious mistake committed by the trial court. In fact, the trial court should not have entertained the suit itself on the point of pecuniary jurisdiction. Even though Ex.A1, the agreement to sell would contemplate the total sale consideration in a sum of Rs.97,800/- yet as per the plaint averments, subsequently, the sale consideration got enhanced to Rs.2,53,000/-. Relating to suits of such value, the Munsif court was having no jurisdiction because up to Rs.1 lakh alone, the Munsif court was having jurisdiction. In fact, in this case, the Sub Court, which acted as the appellate court was in stricto sensu the trial court.
54. In view of the settled proposition of law that as per Section 21 of the Code of Civil Procedure if objection to pecuniary jurisdiction was not raised at the earliest point of time, then the same could not be raised at the second appellate stage, I would like to ignore the point considering pecuniary jurisdiction. However for future guidance, I would like to mandate the lower courts that in matters of this nature, they should concentrate more.
55. Accordingly, the substantial questions of law are answered to the following effect:
1. The substantial question of law No.1 is decided to the effect that both the fora below failed to legally consider the distinction between the two principles, viz., (i) time is not the essence of a contract relating to specific performance of an agreement to sell concerning immovable property, and (ii) the limitation period of three years for filing the suit for specific performance and they also failed to evaluate the evidence to find out whether the plaintiff was ready and willing to perform his part of the contract as per Section 16 (c) of the Specific Relief Act.
2. The substantial question of law No.2 is decided to the effect that the payments made under Exs.A3, A16, A17 and A18 would not attract Section 18 of the Limitation Act so as to enable the plaintiff to file the suit to get enforced Ex.A1 as such.
3. The substantial question of law No.3 is decided to the effect that Second part of Article 54 of the Limitation Act was not applicable in the facts and circumstances of this case.
4. The substantial question of law No.4 is decided to the effect that the receipt of the amounts by D2, D3, D5 and D6 would not bind D1 and D4 who were not in receipt of any such additional amount from the plaintiff.
5. The substantial question of law No.5 is decided to the effect that this court could mould the relief and grant the same in this factual matrix.
6. The substantial question of law No.6 is decided to the effect that the courts below failed to apply Sections 16 (c) and 20 of the Specific Relief Act concerning the specific performance of Ex.A1.
7. The substantial question of law No.7 is decided to the effect that in view of the ratiocination adhered to in deciding the aforesaid points, the judgment and decree of the first appellate court are set aside and the matter is remitted back to the first appellate court.
56. On balance, this second appeal is disposed of with the aforesaid observation. However, in the circumstances, there shall be no order as to costs. Consequently the connected miscellaneous petition is closed. vj2 To 1. The Subordinate Judge, Tiruchengode 2. The Additional District Munsif Tiruchengode