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Sundara Ramanujam Naidu Vs. Sivalingam Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported inAIR1924Mad360; (1923)45MLJ431
AppellantSundara Ramanujam Naidu
RespondentSivalingam Pillai and anr.
Cases Referred and Nathu Valad Pandu v. Bhudu Valad Bhika I.L.R.
Excerpt:
- - 3. it seems to me that the suit clearly falls within the description of a suit for specific performance under clause x(a) and the addition of the prayer for possession makes no difference. that was a ruling under order ii, rule 2 of the code of civil procedure and it was held there that the failure to ask for possession in the suit for specific performance did not bar a second suit for possession. though it was conceded that such a plaintiff may be permitted to add such a prayer it was held that it was not a claim that arose directly from the cause of action sued on and therefore the failure to make it did not entail the consequence stated in clause (2) of the rule. the execution of a conveyance is only a part of the specific performance if the vendor agrees to execute a conveyance..........section 7 (x)(a) of the court fees act. the words used are 'specific performance of a contract of sale.' specific performance does not exist merely of the execution of a sale-deed. a suit to obtain a sale-deed is not what is referred to in the said section, but it is a suit for specific performance of a contract of sale. the execution of a conveyance is only a part of the specific performance if the vendor agrees to execute a conveyance as well as to deliver possession, it cannot be said that specific performance of the contract does not comprise both the execution of the sale-deed and delivery of possession. in every contract of sale, unless the contrary appears, the vendor must be deemed to impliedly agree to give possession of the property to the purchaser. in a suit for specific.....
Judgment:

Krishnan, J.

1. This Civil Revision Petition arises from a suit brought by plaintiff to enforce specific performance of a contract to sell a shop by directing the defendant to deliver a proper sale-deed to him on his paying the price into Court and for recovery of possession of the property. The question that arises for decision is what is the proper value of this suit for purposes of jurisdiction. Section 8 of the Suits Valuation Act makes the value for Court fees and for jurisdiction the same in such suits. We have therefore to see under what provision or provisions of the Court Fees Act the suit has to be valued. The District Munsif held that it was one for recovery of possession and should be valued under Section 7, Clause V(e) of the Act and as that value was over Rs. 3,000, the pecuniary limit of his jurisdiction, he returned the plaint to be presented to the proper Court. On appeal the Subordinate Judge upheld that view and hence the revision to us by the plaintiff.

2. Plaintiff contends that the suit falls under Clause X(a) of Section 7 and not under Clause V at all. The defendant on the other hand argues that the suit falls under Clause V(e) and its value is either the aggregate of the values computed under Clauses V(e) and X(a) or at any rate is the value under Clause V(e). Clause X(a) provides that in a suit for specific performance of a contract of sale the Court-fee payable is 'according to the amount of the consideration.' Now the consideration stated in the document is 'the sum total of the principal, interest, costs incurred and other miscellaneous expenses connected therewith.' We called for a finding to ascertain how much these items totalled up to in cash and the finding is that it works out to Ks. 2,265. We accept that finding as one of fact : and it follows that if the suit is valued under Clause X(a) alone it is within the Munsif's jurisdiction.

3. It seems to me that the suit clearly falls within the description of a suit for specific performance under Clause X(a) and the addition of the prayer for possession makes no difference. The relief by way of giving possession arises from the relief granting the execution and delivery of the sale-deed, as without a registered sale-deed, title cannot be transferred under the Transfer of Property Act where the value is over Rs. 100; without the latter relief being granted, the former cannot: see Muhi-ud-din Ahmad Khan v. Majlis Rai (1818) 36 M.L.J. 89. Nevertheless both the rights, viz., the right to the sale-deed and the right to possession spring out of the same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a contract of sale unless the terms thereof show that the vendor was not under an obligation to deliver possession. The claim for delivery of possession is as much a part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance. In fact this Court has held in Bhashya Karlu v. Andalammal (1918) M.W.N. 896 that a suit for the purchase price by itself is a suit for specific performance. It is clear from Form 47, 1st Schedule, Appendix A of the Civil Procedure Code, that a prayer for possession is a proper prayer in a suit for specific performance without altering the character of the suit. It seems to me that this suit cannot be properly described as a suit for possession of property and brought under Clause V of the Court Fees Act simply because a prayer for possession is added, any more than, for example, a suit for redemption of a usufructuary mortgage, wherein also there will be a prayer for possession, can be so described and brought under that clause.

4. Now, as regards the authorities cited before us, the case in Nihal Singh v. Sewa Ram (1916) .L.R. 38 All. 292, is a direct ruling on die point and is in favour of the view I am taking. On the other hand a ruling of the Calcutta Court in Madan Mohan Singh v. Gaja Prasad Singh (1911) 11 I.C. 228, has an observation in it that the suit such as the one before us is in substance a suit for possession and must be valued as such. That view has been followed by the Lahore High Court in Gopal Das v. Parmanand (1920) 60 I.C. 512 , But the question has not been fully discussed in these cases and with great respect to the learned Judges, I regret I am unable to follow their view for the reasons I have given above.

5. It was strenuously contended by the learned Vakil for the Respondent that the view I am taking is opposed to the view taken in Krishnammal v. Soundararaja Ayyar (1914) .L.R. 38 M. 698, as to the nature of a suit for specific performance. That was a ruling under Order II, Rule 2 of the Code of Civil Procedure and it was held there that the failure to ask for possession in the suit for specific performance did not bar a second suit for possession. This ruling is directly against the ruling in Krishnasami v. Sundarappayyar I.L.R.(1894) M. 415, but the point was not referred to a Full Bench. I do not think we need however settle this conflict of opinion as the ruling relied on has no direct bearing on the present case which is one under the Court Fees Act. The point there was whether a Plaintiff suing for obtaining a proper sale deed was entitled to make a claim for possession as a matter of right and the learned Judges held he was not, and that Clause (2) of Rule 2 therefore did not apply to him. Though it was conceded that such a plaintiff may be permitted to add such a prayer it was held that it was not a claim that arose directly from the cause of action sued on and therefore the failure to make it did not entail the consequence stated in Clause (2) of the rule. Whether this view be correct or not, the point in the suit before us is totally different. It is this that when the prayer for possession is allowed to be added does the suit case to be one for specific performance and become a suit for possession or combination of both suits under the Court Fees Act. I do not think so.

6. I have already given my reasons for holding that it cannot be treated as a suit for possession under the Court Fees Act. It follows of course that it could not be a combination of 2 suits either or of 'two or more distinct subjects' to attract the application of Section 17 of the Court Fees Act. The word 'subject' is of a somewhat uncertain connotation and it was held to be 'not capable of any precise definition' in Neelakandhan v. Ananthakrishna Ayyar I.L.R. 30 M. 61. The case cited in Krishnaswami v Sundarappayyar I.L.R.(1894) M. 415 is no authority for saying that in a suit for specific performance and for possession, court-fee should he paid on the aggregate value of the 2 prayers. Though perhaps that case seems to have assumed such a proposition, there is no discussion about it and the observation itself is an obiter dictum as the deficient court-fee had been paid. We cannot thus treat it as an authority on the point. No other case has been cited to support the same view.

7. I have come to the conclusion that the present suit is rightly valued under Section 7 Clause (X)(a) of the Court Fees Act and that it is within the jurisdiction of the munsif. I therefore set aside the orders of both the lower Courts and direct the District Munsif to take the plaint on his file and dispose of the suit according to law. Defendant will pay Plaintiff's costs in this and in the Lower Appellate Court. The costs in the first Court will abide and follow the result.

Venkatasubba Rao, J.

8. The point to be decided is whether the District Munsif's Court has jurisdiction to entertain the suit. The Plaintiff prayed for a decree directing the Defendant to execute a sale-deed in respect of the suit property and to deliver possession thereof. The Defendant had agreed to execute a conveyance in favour of the Plaintiff, and the suit was to enforce specific performance of this agreement. It has been found that the house is worth more than Rs. 3,000, but the consideration for the contract of sale amounts to Rs. 2,265. Is this a suit for specific performance falling under Section 7, Clause (X) of the Court Fees Act, or is it a suit for possession to which Section 7, Clause (V) of the same Act applies? In the former case, the Court-fee payable has to be computed ad valorem on the amount of the consideration (in this instance Rs. 2,265), and under Section 8 of the Suits Valuation Act (Act VII of 1887), the same amount will determine also the Court which has jurisdiction to try the suit. On the other hand, if the suit is one for possession, the Court-fee has to be computed under Section 7(V)(e) with reference to the market value of the house more than Rs. 3,000), and under Section 14 of the Madras Civil Courts Act III of 1873, the forum will have to be determined with reference to that value. In short, if the suit is held to be a suit for specific performance of a contract of sale, the District Munsif's Court will have jurisdiction; if the suit is held to be a suit for possession, that Court will have no jurisdiction.

9. I am quite clear that the suit falls within Section 7 (X)(a) of the Court Fees Act. The words used are 'specific performance of a contract of sale.' Specific performance does not exist merely of the execution of a sale-deed. A suit to obtain a sale-deed is not what is referred to in the said section, but it is a suit for specific performance of a contract of sale. The execution of a conveyance is only a part of the specific performance If the vendor agrees to execute a conveyance as well as to deliver possession, it cannot be said that specific performance of the contract does not comprise both the execution of the sale-deed and delivery of possession. In every contract of sale, unless the contrary appears, the vendor must be deemed to impliedly agree to give possession of the property to the purchaser. In a suit for specific performance the purchaser seeks to enforce the terms of his contract. The seller as much agrees to put the purchaser in possession as he agrees to execute a conveyance in his favour.

10. Then it is argued that, as the Plaintiff also claims possession in the suit, the suit must be regarded as one for possession. But the specific provision relating to suits for specific performance excludes the applicability of the general provision relating to suits for possession. If the claim to possession is involved in the claim to specific performance, the suit will still remain one for specific performance and it must be dealt with only on that footing. A suit for redemption is, in effect, a suit for possession of the property; but can it be contended that the provision applicable to such a suit is not the one dealing with suits for redemption, Section 7, Clause (IX), but the one dealing with suits for possession Section 7, Clause (V)? I shall not use the words principal and ancillary. It is not strictly correct to say that, in a suit for specific performance of a contract, the execution of a conveyance is the principal relief and possession is secondary and ancillary. 'It is, indeed, difficult to say in the abstract that a certain relief is the primary relief claimed. I would prefer to rest my judgment on the ground that a suit for specific performance is, in its essence, different from a suit for possession, and the mere fact that possession is also claimed does not render the suit any the less a suit for specific performance.

11. I may observe that the agreement on which the suit is based, far from indicating an intention not to give possession, contains evidence of the fact that the parties intended that possession should be given.

12. The view taken in Nihal Singh v. Sewa Ram I.L.R. (1916) All. 282 , decision of a single Judge, supports my conclusion. In Madan Mohan Singh v. Gaja Prasad Singh (1910) 11 I.C. 228, the Calcutta High Court took a different view; but there is no discussion of the principle, and we find merely a statement to the effect that a suit for specific performance is, in substance, a suit for possession. Gopal Das v. Parmanand (5) is a decision of a single Judge of the High Court of Lahore and it affords very little assistance because in the judgment it is assumed that a sale had already taken place and, therefore, the suit could not possibly be regarded as one for specific performance of a contract to sell, though I must say, with all respect, that it is far from clear how there could be a completed oral sale, the consideration being stated to be Rs. 4,250. Natha Khan v. Muhammad Khan (1918) 46 I.C. 534 is a case from the Punjab, and the learned Judge who decided it followed II, I.C., 228 on the ground that he could not find any authority to the contrary although his own inclination was the other way.

13. I hold that the suit is a suit for specific performance of a contract to sell.

14. Mr. Alladi Krishnaswami Ayyar, the learned Vakil for the Defendant, very strongly relied upon Krishnammal v. Soundaraja Aiyar I.L.R. (1914) M. 69. It was held in it that a Plaintiff, who had obtained in a previous suit a decree directing the Defendant to execute a sale-deed, was not barred after obtaining the conveyance from instituting a fresh suit for the recovery of possession of the property covered by the conveyance. Order II, Rule 2 of the Civil Procedure Code, omitting portions not relevant, runs thus : 'Every suit shall include the whole of the claim which the plaintiff is entitled to make, in respect of the same cause of action; and when a Plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted.' The argument advanced is this : If a second suit for possession is not barred, it follows that, the right to possession does not arise out of the same cause of action; and if the right to possession does not arise out of the same cause of action it is wrong to say that out of the same contract spring both the rights - the right to a sale-deed as well as the right to possession. But this argument ignores the fundamental difference to which reference is made in the Judgment of. Tyabji, J., in Krishnammal v. Soundararaja Ayyar I.L.R. (1914) M. 698 between a right to possession arising out of the contract to sell and the right to possession based upon the conveyance, a distinction also pointed out in the judgment of Sargent, C.J., in Nathu Valad Pandu v. Bhudu Valad Bhika I.L.R. 18 B. 537 . If a Plaintiff claims in the first suit only a conveyance and omits to ask for possession, a second suit for possession based upon the agreement may fail. But if the claim to possession in the second suit is based upon the conveyance obtained in pursuance of the decree in the first suit, the cause of action in the second suit is entirely different, and the first suit cannot operate as a bar. This is the effect of Krishnammal v. Soundararaja Aiyar I.L.R. (1914) M. 698 and Nathu Valad Pandu v. Bhudu Valad Bhika I.L.R. 18 B. 537. It has been held that in the same suit there may be prayers both for execution of a conveyance and for possession. It has also been held that a second suit for possession is not barred by the previous suit, in which a mere conveyance was claimed. I do not think that there is any inconsistency in the two sets of decisions. The right to possession claimed in the second suit must be deemed to be the right based upon the conveyance and not arising out of the contract to sell. This is, in my view, the true principle and, judged in the light of it, the decisions are easily reconcileable, and the view I am taking is not opposed to the principle underlying these various decisions.

15. In the result I agree with the order proposed by my learned brother.


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