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Sanga thevar Vs. Thanukodi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 538 of 1949
Judge
Reported inAIR1954Mad116; (1952)IMLJ620
ActsSpecific Relief Act, 1877 - Sections 27; Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 2 and 4
AppellantSanga thevar
RespondentThanukodi Ammal and ors.
Appellant AdvocateK.V. Srinivasa Iyer, Adv.
Respondent AdvocateT.P. Gopalakrishnan, Adv.
DispositionAppeal allowed
Cases ReferredDau Alakram v. Kulwantin
Excerpt:
contract - sale of property - section 27 (b) of specific relief act, 1877 - contract for sale of property with plaintiff - property sold to someone else suppressing fact of previous contract - whether plaintiff entitled to specific relief - in order to be entitled to specific relief section 27 (b) is required to be complied with - plaintiff did not comply with section 27 (b) - plaintiff not entitled to specific relief. - - 2. the first point raised by the appellant is that so far es he was concerned, necessary averments in the plaint have not been made that he was a purchaser with notice of the contract between the plaintiff and defendant 1 or that he had not paid value in good faith for the property purchased from defendant 1 and that section 27(b), specific relief act has not been..........munsif's court for enforcing a contract for sale of a house by defendant 1. the suit was for specific performance and the contract was an oral one; but subsequent to that oral contract, there was a sale deed executed but was not registered, owing to certain machinations, which are alleged against the appellant. the learned district munsif dismissed the suit on the ground that the contract alleged, on the basis of which specific performance was claimed, was not true and was not proved. a further question also arose in the suit as to whether this appellant who was defendant 2 in the lower court and who had purchased the property from defendant 1, had notice of the contract between the plaintiff and defendant 1 and whether he was entitled to retain the property purchased by him. on.....
Judgment:

Basheer Ahmed Sayeed, J.

1. Defendant 2 in the suit is the appellant before me. The respondent filed the suit in the District Munsif's Court for enforcing a contract for sale of a house by defendant 1. The suit was for specific performance and the contract was an oral one; but subsequent to that oral contract, there was a sale deed executed but was not registered, owing to certain machinations, which are alleged against the appellant. The learned District Munsif dismissed the suit on the ground that the contract alleged, on the basis of which specific performance was claimed, was not true and was not proved. A further question also arose in the suit as to whether this appellant who was defendant 2 in the lower Court and who had purchased the property from defendant 1, had notice of the contract between the plaintiff and defendant 1 and whether he was entitled to retain the property purchased by him. On this, the learned District Munsif gave a finding against the plaintiff. The plaintiff, thereupon, preferred an appeal before the learned Subordinate Judge, who held that there was a valid contract between defendant 1 and the plaintiff in respect of the sale of the property in question. But, on the second point he felt that the learned District Munsif had not applied his mind as to whether the appellant was a purchaser without notice and, therefore, remanded the suit for further trial and disposal. Against this remand order, defendant 2 has preferred this appeal.

2. The first point raised by the appellant is that so far es he was concerned, necessary averments in the plaint have not been made that he was a purchaser with notice of the contract between the plaintiff and defendant 1 or that he had not paid value in good faith for the property purchased from defendant 1 and that Section 27(b), Specific Relief Act has not been complied with. Therefore, his contention is that) the plaintiff was not entitled to any relief against him in the absence of such averments in the plaint and in the absence of proof of the same.' On this point, the learned counsel for the respondent has pointed out the averments contained in para. 9 of the plaint and would urge that that paragraph is a sufficient answer to the complaint of the learned counsel for the appellant in that it has been alleged, that defendant 2 had notice of the sale,and that he was not a purchaser for value in good faith. I do not think that the averments in para. 9 of the plaint could be construed, to contain all that the learned counsel for the respondent would urge to contain. That paragrap'h is simply a complaint against the defendant for having suppressed the sale deed said to have been executed by defendant 1 in favour of the plaintiff, and it does not, in my opinion, comply in terms witch the conditions that have to be alleged and proved under Section 27 (b), Specific Relief Act. Section 27 (b) would say that except as otherwise provided by this chapter, specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequent to the contract, except a transferee for value, who has paid his money in good faith and without notice of the original contract. According to Sub-clause (b) of Section 27, the conditions to be satisfied are that the plaintiff must prove that defendant 2 purchaser was not a purchaser for value, that he had not purchased it in good faith and that he had notice of the original contract. These allegations cannot be spelled out of para. 9 of the plaint, in substance, the averment in para. 9 of the plaint is only to the effect that defendant 2 had fraudulently suppressed the sale deed and that, therefore, the plaintiff was entitled to have a sale made to her and possession of the property delivered to her by her enforcing the right of specific performance against all the defendants. I do not think, as already observed, that this could be said to be sufficient compliance with the requirements of Section 27, Specific Relief Act. There is, therefore, much force in the contention of the learned counsel for the appellant, in that the pleading is defective and, on this issue alone, the suit ought not to have been remanded but the decree of the lower Court should have been confirmed.

3. The next point raised by the learned counsel for the appellant is that the action brought by the plaintiff being one in equity, it was incumbent upon the plaintiff to have made allegations in the plaint to the effect that she was ready and willing to perform her part of the, contract viz., to pay the sum of Rs. 1000 and take over the property on execution of the sale deed either by defendant 1 or, in default by him, by the Court on his behalf. A perusal of the various paragraphs of the plaint does not disclose that any such allegation or averment has been made in the plaint. The only part of the plaint on which the learned counsel for the respondent could lay his finger for his contention that such an averment has been made is the prayer, wherein it Is stated that a decree for specific performance may be passed as against all the defendants, directing their executing a sale deed of the under mentioned, property for Rs. 1000 at their cost and delivery of possession of the property. I do not think that this prayer can be said to be the kind of allegation or averment that is required in cases where the plaintiffs require equity to be done to them. The principle that parties, who seek equity must do equity themselves, meaning thereby that plaintiffs who go to Court for enforcing their equitable claims against defendants must themselves express in unmistakable terms their readiness and willingness to perform their contract cannot be said to have been complied with in the form in which the prayer is couched in the plaint by the plaintiff in the suit. It is true that this principle has not been embodied in the form of a section in the Specific Relief Act but so much can be easily gathered from Section 24(b), Specific Belief Act, which provides that specific performance of a contract cannot be enforced in favour of a person, who has become incapable of performing or violates any essential term of the contract that on his part remains to be performed. It has been held by Courts in India as well as in England that the law of specific performance in this country has been based on the equitable principle that obtains in England and that in England it is a rule of practice, which is very essential and necessary to be observed viz., that plaintiffs who seek to enforce equitable relief should themselves do equity and nothing should remain on their part unfulfilled, which they are themselves bound under the contract to fulfil or perform.

4. Both counsel in this appeal have invited my attention to the decision of the Privy Council in -- 'Ardeshir H. Mama v. Flora Sassoon', AIR 1928 PC 208 (A) where it has been laid down that the rule of equity in question is the same in India as in England and that, therefore, it is an essential condition that the party, who seeks equitable relief should also do equity. On the facts of this case & i the absence of any averment or allegation to the effect that the plaintiff was ready and willing to pay the sum of Rs. 1000, which was the consideration agreed to between defendant 1 and the plaintiff for the sale of the property in question, I do not think that the Court was justified in coming to the conclusion that the decree of the lower Court was wrong and, on that ground to have remanded the suit for further trial and disposal.

5. The learned Subordinate Judge instead of appreciating this complete omission of the averment, which is an essential condition for any suit for specific performance, has sought to spell out from the evidence that there was an offer of readiness and willingness on the part of the plaintiff to pay the sum of Rs. 1000 and thereby perform her part of the contract. I do not think in the face of the decisions of this Court it was open to the learned Subordinate Judge to have inferred such readiness and willingness on the part of the plaintiff from the evidence that has been let in during the course of the trial. It cannot be the case that when the party has failed to make the necessary averments or allegations in the plaint, he could be allowed to make up such defects by evidence and much less would it be reasonable to say that in cases like this where equitable relief is sought, the party should be allowed to remedy defects by letting in oral evidence on all allegations which he has failed to state in the plaint itself. The decisions in --'Arjuna Mudaliar v. Lakshmi Ammal', A. I. R. 1949 Mad 265 (B) and -- 'Dau Alakram v. Kulwantin, Bai', AIR 1950 Nag 238 (C) are in point and they lay down the rule that there should be a specific allegation in cases for specific performance that a party has been ready and willing to perform his part of the contract, and such not being the case in the present suit, I do not think that the suit could be sustained at all. If the suit could not be sustained on this ground, much less could an order of remand be sustained.

6. The further point that arises in this case is that on the evidence even if it were to be held that the oral contract had been proved, the parties having proceeded to a further stage, viz., that the document of sale itself had been executed between deft. 1 & the plaintiff and when the evidence further shows that that document of sale which was tendered for registration according to some of the witnesses and which was not registered was in the possession of P. W. 8, the remedy that was then open in such circumstances to the plaintiff was to have sought enforcement of the registration of the document and not to have proceeded to the Courtfor enforcing the original contract which had according to her own witnesses taken the shape of a definite document executed by defendant 1 in her favour. This contention has been rightly raised by the learned Counsel for the appellant and I should think there is considerable, force in this contention. When once in pursuance of the contract which is alleged to have been oral, a document came into existence and that the document went to the extent if being presented to the registering officer for being registered and was not registered for some reason or other, it follows that there was no further contract to be enforced. The contract had in fact become executed by reason of the execution of the sale deed so that on this ground also the plaintiff was bound to be non-suited. There was nothing more for defendant 1 to do if the evidence of the plaintiff's witnesses was taken to be true, he having executed a document and if the document had gone out of the reach of the plaintiff, it was open to the plaintiff to have compelled its production from P. W. 8 and to have taken adequate remedies for enforcing her rights by the registration of this document instead of proceeding to Court to enforce the oral contract, which had become performed so far as defendant 1 was concerned. Even from this aspect of the case, I do not think the learned Subordinate Judge was correct in having set aside the decree of the trial Court and then remanded the suit. On all these grounds, I am of the opinion that the decision taken by the learned Subordinate Judge to remand the suit was not correct and his order of remand is therefore set aside.

7. The result would be that the decree of the first Court will stand confirmed and this appeal is allowed. The appellant will have his costs both in the Court below and in this Court. Leave refused.


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