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Eswari Amma and anr. Vs. K.K. Korah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtChennai High Court
Decided On
Case NumberApp. No. 519 of 1964
Judge
Reported inAIR1972Mad339
ActsTransfer of Property Act, 1882 - Sections 105; Specific Relief Act, 1963 - Sections 20
AppellantEswari Amma and anr.
RespondentK.K. Korah and ors.
Appellant AdvocateK. Parasram, Adv.
Respondent AdvocateA. Sundaram Iyer, ;T.S. Srinivasan and ;S. Ananthakrishna Nair, Advs.
Cases ReferredSubbarayadu v. Tatayya
Excerpt:
property - assessment - section 105 of transfer of property act, 1882 and section 20 of specific relief act, 1963 - suit for specific performance of agreement of sale - plaintiff was ready and willing to perform his part of contract - default was due to inability of defendant to give possession of suit lands on account of subsisting lease - delay of two years in seeking delivery of actual possession of suit properties does not disentitle plaintiff from getting specific performance of agreement of sale - order in favour of plaintiff valid. - - a-4, dated 15-2-1961 for rupees 52,000 in respect of 126 acres 91 cents of land known as 'love grow providence estate' owned by defendants 1 and 2. the first defendant is the wife and the second defendant is the daughter of d. 3. it is averred.....sadasivam, j.1. appellants are defendants 1 and 6 in o.s. no. 23 of 1963, on the file of the subordinate judge's court, padmanabhapuram. the first respondent-plaintiff filed the suit for specific performance of the agreement of sale ex. a-4, dated 15-2-1961 for rupees 52,000 in respect of 126 acres 91 cents of land known as 'love grow providence estate' owned by defendants 1 and 2. the first defendant is the wife and the second defendant is the daughter of d.w. 4 raman pillai, who acted on their behalf in bringing about the agreement of sale. defendants 1 and 2 had purchased the suit property from the third defendant on 20-6-1956 for rs. 20,000 under the original of ex. b-2, but paid only rs. 1500 at the time of sale and agreed to pay the balance of rs. 18,500 in four instalments from.....
Judgment:

Sadasivam, J.

1. Appellants are defendants 1 and 6 in O.S. No. 23 of 1963, on the file of the subordinate Judge's Court, Padmanabhapuram. The first respondent-plaintiff filed the suit for specific performance of the agreement of sale Ex. A-4, dated 15-2-1961 for Rupees 52,000 in respect of 126 acres 91 cents of land known as 'Love Grow Providence Estate' owned by defendants 1 and 2. The first defendant is the wife and the second defendant is the daughter of D.W. 4 Raman Pillai, who acted on their behalf in bringing about the agreement of sale. Defendants 1 and 2 had purchased the suit property from the third defendant on 20-6-1956 for Rs. 20,000 under the original of Ex. B-2, but paid only Rs. 1500 at the time of sale and agreed to pay the balance of Rs. 18,500 in four instalments from august, 1958 to August, 1962. There is no dispute about the claim of the third defendant for the balance of sale consideration payable to him. Defendants 4 and 5 were cultivating the suit lands excluding the portions occupied by rubber plants and trees for raising tapioca under an unregistered lease deed dated 27-3-1957, which has not however been produced in this case. According to the plaintiff, defendants 4 and 5 were in occupation of the suit lands as lessees of defendants 1 and 2 for the purpose of tapioca cultivation. But, according to defendants 1 and 2 defendants 4 and 5 were only licencees who were permitted to cultivate tapioca plants year after year. Defendants 4 and 5 claimed to be lessees in possession of the suit lands and contended that they had spent Rs. 10,000 for improving the properties and claimed benefits of Travancore-Cochin Act VIII of 1950. But they subsequently surrendered possession of the suit lands in pursuance of the compromise entered into by them with defendants 1 and 2. The sixth defendant purchased an extent of 67 acres 64 cents out of the suit properties from defendants 1 and 2 on 2-12-1963, that is after suit, for Rs. 60,000.

2. The learned Subordinate Judge accepted the plaintiff's case that he was always ready and willing to perform his part of the agreement of sale and that the default was solely due to the inability of defendants 1 and 2 to give possession of the suit lands on account of the subsisting lease in favour of defendants 4 and 5. The learned Subordinate Judge, however, accepted the case of the contesting defendants 1 and 2 that the other conditions of sale as regards the obtaining of the encumbrance certificate and satisfying the plaintiff about the boundaries etc. of the suit properties were complied with. He did not agree that defendants 4 and 5 were merely licencees and that the possession of the suit properties remained with defendants 1 and 2, or that there was any abandonment of the suit claim by the plaintiff either on account of inordinate delay or other circumstances or that defendants 1 and 2 effected improvements as considerable cost and that specific performance should not therefore be granted. In the result, the learned Subordinate Judge decreed the suit as prayed for with costs against defendants 1 and 2 and allowed the third defendant to draw the amount due to him out of the amount to be deposited by the plaintiff within three months from the date of the judgment.

3. It is averred in paragraph 3 of the plaint that, as per the terms of the agreement, defendants 1 and 2 should have within three months of the date of the agreement of sale satisfied the plaintiff by getting encumbrance certificate regarding the plaint schedule property for the period from 8-6-1956 and showing that to the plaintiff, that they should have satisfied the plaintiff regarding the boundaries and extent of the plaint schedule property and that they should also have delivered vacant possession of the plaint schedule property to the plaintiff. The first defendant has pleaded in her written statement that paragraph 3 of the plaint is not correct and that the relevant terms of the agreement have not been truly and correctly stated in the said paragraph. There is no doubt about the truth of the agreement of sale Ex. A-4 and the terms of the agreement mentioned therein. According to the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate in respect of the suit properties from 8-6-1956 and satisfy the plaintiff about the extent and boundaries of the schedule properties and hand over the entire schedule properties to him within three months from the date of the agreement of sale. D.W. 4 Raman Pillai applied for encumbrance certificate a few days prior to the expiry of the three months' period and got the encumbrance certificate Ex. B-1 on 20-5-1961, that is five days after the expiry of the three months' period.

The learned Subordinate Judge has observed that the fact that Ex. B-1 was not obtained before the expiry of the three months' period, but only five days later, cannot at all be viewed with disfavour against defendants 1 and 2. D.W. 4 Raman Pillai claims to have shown Ex. B-1 to the plaintiff on 26-5-1961, but the plaintiff as P.W. 6 denies the same. D.W. 1, Purushothaman Nair corroborates the evidence of D.W. 4 Raman Pillai that the latter showed the encumbrance certificate to the plaintiff. The learned Subordinate Judge has rightly observed that the probabilities are that D.W. 4 Raman Pillai who had obtained the encumbrance certificate would have shown it to the plaintiff when he came to his house on 26-5-1961. Thus the fact that defendants 1 and 2 did not obtain an encumbrance certificate within the period of three months cannot be considered to be a default on the part of defendants 1 and 2 which can lead to any inference that they were not willing to perform the agreement of sale, or wanted to commit any breach of it. But it is clear from the terms of the agreement Ex. A-4 that it is not the mere obtaining of the encumbrance certificate by defendants 1 and 2 within three months which is important, but that defendants 1 and 2 should satisfy the plaintiff about the extent and boundaries of the suit properties after obtaining the encumbrance certificate. The learned Subordinate Judge has referred to the fact that the plaintiff has gone to the suit lands two or three weeks prior to Ex. A-4 and also in the middle of April, that he had no difficulty in ascertaining the boundaries and the extent of the suit properties, that apart from the sum of Rupees 5000 paid as advance he has made a further payment of Rs. 3000 under Ex. A-11 in pursuance of the letter of request Ex. A-10 sent by the first defendant and observed that these circumstances would go to show that there was absolutely no difficulty in ascertaining the extent and boundaries of the suit properties and that the probabilities are that the plaintiff was satisfied with regard to the same. It is not possible to accept this finding having regard to the terms of the agreement.

Under the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate and satisfy the plaintiff about the extent and boundaries of the suit properties agreed to be sold under Ex. A-4. The fact that the plaintiff went to the suit properties on two prior occasions and that he paid a further sum or Rs. 3000 apart from the advance of Rupees 5000 already paid by him cannot be taken as satisfying the terms of the agreement of sale as to what defendants 1 and 2 should do. In fact, D.W. 4 Raman Pillai admitted in cross-examination that after the agreement of sale, the suit properties were not measured and identified in the presence of the plaintiff. But, here again, we have to point out that the strict non-compliance with this term of the agreement by defendants 1 and 2 could not have been a real grievance for the plaintiff in this case and it is not possible to inter from this circumstance that defendants 1 and 2 were unwilling to perform their part of the agreement.

4. The oral and documentary evidence in this case leaves no room to doubt that both the parties were willing to perform the agreement of sale. Ex. A-4 entered into by them till they met in the house of defendants 1 and 2 on 26-5-1961.

... ... ... ... ... ... ... ... ... ... ...

(His Lordship discussed the evidence and proceeded).

Hence the plea of the first defendant and the evidence of her husband D.W. 4 Raman Pillai that the plaintiff had no money to complete the contract of sale and therefore he had committed default is clearly false and in fact no attempt was made by the learned advocate for the appellants to put forward such a contention before us.

5. The learned advocate for the appellants, however, urged that as the plaintiff had utilised the amount for the purchase of other estates in subsequent years and had even taken three months' time to deposit the balance of sale consideration, it could not be said that he continued to have means to fulfil the contract. It is true the plaintiff admitted that in 1963 he and his wife purchased properties, but no suggestion was made to him that he could not command the necessary funds for the purchase of the suit properties subsequent to his meeting defendants 1 and 2 on 26-5-61 and before the date of suit. In fact, there is no such plea in the written statement of the first defendant. There is nothing to show that the plaintiff asked for three months time to deposit the balance of sale consideration. It is quite likely that the three months' period was provided in the judgment and decree of the trial Court in the usual course without any request for time by the plaintiff.

6. The learned Advocate for the appellants relied on the decision in Veerayya v. N. S. Chowdry, 1966 2 SCJ 789 in support of his contention that in a suit for specific performance, the plaintiff must show that he was ready and willing to perform his part of the contract from the time the contract was made till the date of the decree. But it is a clear from that decision that the plaintiff must aver in his plaint that he was ready and willing to perform his part of the contract and that if the averment is traversed, he must prove the said averment. The plaintiff in this case pleaded that he was ever ready to do his part of the contract. The first defendant has stated in her written statement the circumstances under which the plaintiff came and went away from her house in May, 1961 and pleaded that the plaintiff had no money with him to complete the sale and so he went away. There is no plea in the written statement of the first defendant that the plaintiff had no sufficient funds subsequent to his purchasing other properties in 1963 and prior to the suit and hence he could not have been ready and willing to perform the suit agreement during the entire period. In Nathulal v. Phoolchand : [1970]2SCR854 , the Supreme Court has held that a vendor of immovable property under an agreement of sale to whom the vendee has paid part of the sale price and entered into possession cannot call upon the vendee to pay the balance of price before he performs his part of the contract and that he cannot plead that the vendee is not ready and willing to pay the balance on the ground that he had not tendered the amount. It is pointed out in that decision that to prove himself ready and willing, the purchaser need not necessarily produce the money or vouch a concluded scheme for financing the transaction and that if he has an outstanding arrangement with his banker to enable him to draw the amount needed by him for payment to the vendor, that would be sufficient to prove his readiness and willingness.

In Bank of India v J. A. H. Chinoy AIR 1950 PC 90, the Privy Council has pointed out that in order to prove himself ready and willing to perform his obligation under a contract to purchase shares, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and that the question is one of fact. The plaintiff in that case had stated that he had no sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. The Privy council agreed with the following observations of chagla. A. C. J.:--

'In my opinion on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury--if the matter was left to the jury in England--would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2.'

For the foregoing reasons, we are unable to uphold the plea put forward by the learned advocate for the appellants in this Court that though the plaintiff had means to purchase the properties in 1961, he was not in a position to do so after he purchased other properties in 1963, and therefore he could not have been ready and willing to perform his part of the suit agreement even prior to suit.

7. We have referred to the exchange of notices prior to the meeting of the parties on 26-5-1961 and pointed out as to how they go to show that both the parties were willing to complete the agreement of sale. We have negatived the case of the first defendant put forward for the first time in her written statement that the plaintiff had no money at the time of his meeting her in her house on 26-5-1961. The plaintiff has pleaded and adduced evidence to show that defendants 1 and 2 were not in a position to complete the agreement of sale as they were not in a position to deliver possession of the suit properties on account of the subsisting lease in favour of defendants 4 and 5. There is ample evidence in this case to prove the plea of the plaintiff that defendants 1 and 2 were not able to fulfil the agreement of sale, as they were not in a position to deliver possession of the suit properties. The learned advocate for the appellants contended that defendants 4 and 5 were only licensees and not lessees of the suit properties and that defendants 1 and 2 could not have had any difficulty in delivering possession of the suit properties to the plaintiff in May, 1961. We are unable to accept this contention.

8. Defendants 1 and 2 have entered into an agreement of lease with defendants 4 and 5. But that document has not been produced in this case. It is true the nomenclature of the document is not conclusive as to the nature of the transaction evidenced by it. Defendants 4 and 5 filled a written statement pleading that they had taken a lease of the suit properties from defendants 1 and 2 that they were entitled to be in possession as per the Travancore-Cochin Act VIII of 1950. But, subsequently they entered into a compromise with defendants 1 and 2 on 13-3-1964 stating that they had no interest in the suit properties. In fact they went to the extent of stating in the compromise that they had surrendered their rights in favour of defendants 1 and 2 even prior to Ex. A-4. the fourth defendant Challayan Nadar had been examined as P.W. 2 in the suit. He gave evidence that he and the fifth defendant took a lease of the suit properties from defendants 1 and 2 under an unregistered lease deed and paid pattom and obtained the receipt Exs. A-1, to A-3 and A-33. The receipt Ex. A.1 is a dated 29-7-1961. The receipt Exs. A-2 and A-3 are for the two subsequent years. These receipts clearly support the case of P.W. 2 Chellayan Nadar. There is no satisfactory explanation by D.W. 4 Raman Pillai for the issue of the said receipts with the statements contained therein. The explanation of D.W. 4 Raman Pillai that the receipts were written in accordance with the conditions of the lease in order to enable him to collect the arrears has been rightly rejected by the trial Judge as not at all convincing.. ... ... ... ... ... ... ... .. .. ...

(His Lordship discussed the evidence and proceeded.)

The evidence of P.Ws. 1 and 3 corroborates the evidence of the plaintiff that defendants 1 and 2 failed to complete the agreement of sale on account of their inability to secure possession of the suit properties from the lessees and the sub-lessees.

9. We are unable to accept the contention of the learned Advocate for the appellants that defendants 4 and 5 were only licencees and not lessees. He argued that defendants 1 and 2 retained possession of the suit properties in which there were rubber plants and trees and that defendants 4 and 5 were only permitted to cultivate tapioca plants and remove the same. Under S. 105 of the Transfer of Property Act-

'a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service, or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.'

The learned advocate for the appellants referred to paragraph 17 at page 10 in Woodfall on landlord and Tenant vol. I, in support of his contention that there should be exclusive possession with a person to constitute him a lessee of another. But, the heading of the paragraph itself is 'exception to the test of exclusive possession'. it is clear from that paragrafh that an occupier can be held to be a licencee, though in fact he has exclusive possession. The illustration given in that paragraph refers to a case where on the death of a widow of a statutory tenant, the daughter who had no right to retain possession under the Rent Acts, was allowed by the landlord by way of indulgence to stay there, with, in fact, exclusive possessions, for six months paying the equivalent of rent. It was held to be not a case of lease. In Ramamoorthi Subudhi v, Gopinath : [1967]2SCR559 it has been held that to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form, that the real test is the intention of the parties, whether they intended to create a lease or a licence, that if the document creates an interest that if the document creates an interest in the property it is a lease, but if it only permits another to make use of the property of which the legal possession continues with the owner, it is a licence and that if under the document a party gets exclusive possession of the property, prima facie he is considered to be a tenant, but that circumstances may be established which negative the intention to create a lease.

In Baldeo Prasad. v. Rewaram Ramnath AIR 1950 Nag 107, it has been held that if the nature of the acts to be done by the grantee requires that he should be in exclusive possession, or if the agreement provides that he shall be in exclusive possession the proper inference to be drawn would be that it is a lease. But it does not follow that in order to constitute a lease, it is necessary to grant exclusive possession to the transferee. It is clear from the definition of a lease under S. 105 of the Transfer of Property Act that what all is required is transfer of a right to enjoy immoveable property. It is pointed out at page 656 of Mullah's Transfer of Property Act V. Edn. that the transfer of a right to the usufruct of the property without possession may amount to a lease and the Full Bench decision in Sanku Krishna v. Hari Prabhu, AIR 1952 Trav Co 333 is referred to as the authority for this position. it is clear from page 339 of the decision that the tenant in that case was authorised to plant cocoanut trees and other trees and enjoy the property for 12 years. The tenants in that case had paid a renewal fee on the date of the execution of the document and there was a provision for payment of compensation for the improvement effected by him. It has been held that the demise and enjoyment of the land was not a mere arrangement for lending money and that the relationship was not primarily that of a debtor and creditor but that of a landlord and tenant. It is clear from the case put forward by the first defendant herself that defendants 4 and 5 were entitled to cultivate the land for raising tapioca, though defendants 1 and 2 retained their right to raise and tap rubber plants and trees.

In Sultan Ahmed Rowther v. State of Madras : AIR1954Mad949 the question was whether the assessee was entitled to the benefits of the proviso to S. 2(i) of the Madras General Sales Tax Act, 1939, in respect of the proceeds of sale of arecanut on the ground that they were sales by a dealer of agricultural or horticultural produce grown on land in which he had interest as owner, usufructuary mortgagee, tenant or otherwise. The assessee in that case who was a dealer in cured arecanut entered into a contract with the owner of a thope containing arecanut palms under which the assessee became entitled to collect the usufruct of the trees in that thope and the period of contract was for one year and even when renewed it was only on the land itself and that all that the assessee got under the contract was only an exclusive right to the usufruct and that could by no stretch of imagination be deemed to be an interest in land so as to entitle him to the benefits of the proviso to S. 2(i) of the Act. The decision in Commr. of Income-tax v. Yagappa Nadar, 50 Mad 923 : AIR 1927 Mad 1038 is also to the same effect. It has been held in that decision that income derived from toddy is agricultural income when it is received by the actual cultivator, whether owner or lessee of the land on which the trees grow and that if the income is obtained by a person who has not produced the trees from which the toddy is tapped, or has not done any agricultural operation whereby those trees have been raised, it is not agricultural income within the meaning of the Act. In the present case, defendants 4 and 5 were entitled to cultivate tapioca on the suit lands other than the portions occupied by the rubber plants and trees and remove the same. It is stated that the normal period of such cultivation of tapioca is eight months. It could hardly be contended that there is no transfer of a right to enjoy immoveable property in such a case.

10. The distinction between lease and licence is mentioned at page 659 of Mullah's Transfer of Property Act, V. Edn. It is pointed out therein that a licence is not assignable, that it does not entitle the licensee to sue strangers in his own name, that it is revocable by the grantor except when coupled with interest and that it is determined when the grantor makes an assignment of the subject-matter. It is clear from the facts of this case that defendants 4 and 5 have sub-leased portions of the suit properties to a number of persons who in turn have cultivated the lands. It is not possible to contend that defendants 4 and 5 did not have exclusive possession of the suit properties and the possession of the suit properties was with both defendants 1 and 2 defendants 4 and 5 to enable them to enjoy their respective rights in the rubber plants, trees and tapioca plants, there was sufficient transfer of interest in immoveable property by defendants 1 and 2 in favour of defendants 4 and 5 to enable them to enjoy their respective rights in the rubber plants, trees and tapioca plants, there was sufficient transfer on interest in immoveable property by defendants 1 and 2 in favour of defendants 4 and 5 to constitute a lease under S. 105 of the Transfer of Property Act. For the foregoing reasons, we have no hesitation in finding that defendants 4 and 5 were lessees of defendants 1 and 2 in respect of portions of the suit properties allowed to be cultivated by them with tapioca.

11. The learned advocate for the appellants urged that the plaintiff had by his conduct and delay abandoned his right to claim specific performance.. ... ... ... ... ... ... ... ... ... ...

(After discussing the evidence, His Lordship proceeded.)

Thus there can be no doubt that the plaintiff was merely giving time to defendants 1 and 2 to secure possession of the suit properties from the lessees and the sublessees and deliver actual possession of the suit properties to him and this clearly accounts for his having waited for a period of two years.

12. We are not satisfied that the delay of two years in the circumstances of the case will disentitle the plaintiff from getting specific performance of the agreement of sale Ex. A-4, It has been held in a series of decisions that mere delay will not preclude the plaintiff from obtaining specific performance, if his suit is otherwise in time. In Jamshed Khodaram v. Burjorji Dhanjibhai, ILR 40 Bom 289 : AIR 1915 PC 83 the Privy Council has referred to the principles that govern the construction of a document to find out whether time was of the essence of the contract. It is clear from the decision that prima facie., equity treats the importance of such time limits as being subordinate to the main purpose of the parties. and it will enjoin specific performance notwithstanding that from the point of view of a Court of law the contract has not been literally performed by the plaintiff as regards the time limit specified. It is however pointed out in the decision that equity will not assist where there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete within a definite time. In Arjuna Mudaliar v. Lakshmiammal. AIR 1949 Mad 265, a Bench of this Court has held that mere delay does not by itself preclude the plaintiff from obtaining specific performance, if his suit is otherwise in time and that the delay must be such that it may be properly inferred that the plaintiff has abandoned his right or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. In Sankaralinga v. Ratnasami : AIR1952Mad389 , the entire case law has been reviewed and the above propositions are reiterated. It is also pointed out in the decision that a waiver is not to be inferred merely from the delay in the institution of the suit.

13. The learned advocate for the appellants referred to the report of the Commissioner marked as Ex. A-30 in the suit that there were rubber plants aged about 11/2 years spread over an area of 7 acres of land. There is dispute between the parties as to the extent of land over which 11/2 years plants existed at the time of the Commissioners visit. According to the plaintiff, the extent was only three acres, but according to the first defendant the extent was nearly 15 acres. The learned advocate for the appellants contended that these rubber plants of 11/2 years growth noticed by the Commissioner on 11-1-1964, should have been planted in or about June or July 1962. he contended that defendants 1 and 2 would not have raised rubber plants, if really the plaintiff wanted specific performance of the agreement of sale Ex. A-4. It is clear from the report of the Commissioner that the rubber plants were planted unscientifically without digging proper pits etc. and it looked more like tapioca plantation than rubber plantation. The Commissioner's report also refers to the waste committed in tapping the mature rubber trees contrary to the well accepted practice. It should be noted that defendants 1 and 2 have not produced any accounts, or adduced evidence to show how much they have expended for raising such rubber plants. D.W. 2 Vasudeva Nair has been examined to speak to the rubber plants in the suit properties. But his evidence is interested and unreliable. Thus there is no satisfactory evidence to show that defendants 1 and 2 expended substantial amounts for rising rubber plants in the suit properties. In Ex. A-5 the sub-lessees have complained about defendants 4 and 5 interfering with the rights of the sub-lessees forcibly at the instance of defendants 1 and 2. It is quite possible that in order to assert such illegal possession defendants 1 and 2 raised rubber plants on portions of the suit properties. However, this would not support the plea of defendants 1 and 2 that there was waiver on the part of the plaintiff. We have already pointed out that the plaintiff was always ready and willing to perform his part of the suit agreement and that the default was only on account of the inability on the part of defendants 1 and 2 to secure possession of the suit properties to the plaintiff.

14. The learned advocate for the appellants referred to two decisions in support of his contention that this court should exercise its discretion in refusing to grant specific performance as the plaintiff has come forward with several false contentions. In Satyanarayana v. Yellohi Rao : [1965]2SCR221 the Supreme Court has held that mere delay without more extending up to the period of limitation cannot possibly be a reason for a court to exercise its discretion against giving relief for specific performance. However, under section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary. It is pointed out that the scope of discretion even after excluding the cases mentioned in section 22 of the Specific relief Act of 1877 corresponding to section 20 of the Specific Relief Act of 1963, cannot be confined to waiver, abandonment or estoppel and that diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It is stated that it may better be left undefined except to state what the section says, namely discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal. In Subbarayadu, v. Tatayya, 1937 MWN 1158, a Bench of this court refused specific performance on two main grounds namely, that the appellant-plaintiff had given false testimony in the witness box and that granting specific performance would be doing injustice to the respondent who spent money on improving the property without any protest by the appellant. But it is clear from the facts of that case that even the trial Court refused specific performance on several other grounds. Further the false testimony which disentitled the plaintiff in that suit getting specific performance, related to a false plea that he tendered the full purchase consideration of Rs. 6000. The contention of the appellants in this case is that the trial court disbelieved the evidence of the plaintiff in respect of two of the three conditions of agreement of sale Ex. A-4, namely the production of the encubrance certificate and the failure on the part of the defendants 1 and 2 to satisfy the plaintiff about the boundary and extent of the suit properties. It is however clear from out discussion that defendants 1 and 2 did not really comply with the conditions as the encumbrance certificate was secured after the expiry of the three months and D.W. 4 Raman Pillai has admitted clearly in his evidence that after Ex. A-4 the property was not measured and identified in the presence of the plaintiff. Thus there is no scope for invoking the above decision in Subbarayadu v. Tatayya, 1937 MWN 1158.

15. The learned advocate for the appellants made a faint attempt to question the correctness of the trial court granting specific performance as well as damages. But there is no substance in this contention having regard to S. 19 of the Specific Relief Act of 1877 corresponding to Section 21 of the Specific Relief Act of 1963.

16. In the result, the decree and judgment of the learned Subordinate Judge are correct and they are confirmed. The appeal is dismissed with the costs of the contesting respondent-plaintiff.

17. Appeal dismissed.


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