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Ramaswamy Gounder Vs. K.M. Venkatachalam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1976)1MLJ243
AppellantRamaswamy Gounder
RespondentK.M. Venkatachalam and ors.
Cases ReferredKuppuswami Naidu v. Mannarswami Naidu A.S. Nos.
Excerpt:
- m.m. ismail, j.1. the tenth defendant in o.s. no. 93 of 1968 on the file of the court of the subordinate judge of salem is the appellant herein. admittedly respondents two to ten herein entered into an agreement for the sale of certain immovable property for rs. 15,500 under exhibit a-1 dated 14th october, 1967 in favour of two individuals. the first respondent herein obtained an assignment of that agreement from those two individuals under exhibit a-2 dated 25th october, 1967. it is on the strength of this assignment that the first respondent instituted the present suit for specific performance of the agreement under exhibit a-1. the appellant herein, who was the tenth defendant in the suit, was the purchaser of 2/3 of the suit property under exhibit b-9 dated 27th february, 1968 from.....
Judgment:

M.M. Ismail, J.

1. The tenth defendant in O.S. No. 93 of 1968 on the file of the Court of the Subordinate Judge of Salem is the appellant herein. Admittedly respondents two to ten herein entered into an agreement for the sale of certain immovable property for Rs. 15,500 under Exhibit A-1 dated 14th October, 1967 in favour of two individuals. The first respondent herein obtained an assignment of that agreement from those two individuals under Exhibit A-2 dated 25th October, 1967. It is on the strength of this assignment that the first respondent instituted the present suit for specific performance of the agreement under Exhibit A-1. The appellant herein, who was the tenth defendant in the suit, was the purchaser of 2/3 of the suit property under Exhibit B-9 dated 27th February, 1968 from defendants 1 and 3. According to the first respondent, the appellant herein was a subsequent transferee with knowledge of the existence of the agreement, Exhibit A-1, and therefore the sale in his favour would not be binding on him (first respondent). The first respondent stated in his plaint that an advance of Rs. 1,500 was paid on the date of Exhibit A-1, that the balance of consideration to be paid was Rs. 14,000 and that under Exhibit A-1 five months time was available for executing and registering the sale deed. According to the first respondent, after the assignment dated 25th October, 1967 he had been pressing defendants 1 to 9 at various times to receive the balance of sale price of Rs. 14,000 and to execute the sale deed at his cost, tendered the balance of the sale price of Rs. 14,000 to defendants 1 to 9 on 14th February, 1968 and requested them to execute the sale deed in his name at his cost in respect of the suit properties after receiving the balance of the sale price, but they evaded to execute the sale deed and delayed the matter. His further case was that even prior to 14th February, 1968 he tendered the balance of the sale price to them on many occasions and requested them to execute the sale deed after receiving the balance of the sale price and that they delayed and evaded to execute the sale deed. His further case in the plaint was that on 16th February, 1968 he and his assignors had issued a notice to defendants 1, 2, 3, 5 and 6 calling upon them to come to Pethanaickanpalayam Sub Registrar's office on 24th February, 1968 with defendants 4 and 7 to 9 and then to execute and register a proper sale deed in favour of the first respondent, after receiving the balance of the sale price of Rs. 14,000 at his cost; defendants 1 to 3, 5 and 6 had received the said notice; the first respondent went to Pethanaickenpalayam Sub-Registrar's Office on 24th February, 1968 within whose jurisdiction the suit properties were situate for the purpose of registration with necessary stamp papers and with the balance of the purchase money of Rs. 14,000 for payment to defendants 1 to 9; the first respondent had gone to the Sub-Registrar's office on 24th February, 1968 with one Rama Gounder, his son Perianna Gounder and one Annaswami and Chinna Pillai, defendants 1, 3 and 6 came to the Sub-Registrar's office on the said date and they evaded to execute the sale deed in favour of the first respondent; on 25th February, 1968 the first respondent met the first and third defendants in the house of the third defendant and requested them to execute the sale deed along with the other defendants in his favour after receiving the balance of the sale price, but they evaded and postponed the execution and registration of the sale deed; again on 26th February, 1998 the first respondent met the first defendant with the balance of the purchase money and requested, her to execute the sale deed along with the other defendants after receiving the balance of the sale price, but she evaded the execution and postponed it to 29th February, 1968, and further demanded an extra amount of Rs. 500. TO the notice issued by the first respondent defendants 1 to 3, 5 and 6 issued a reply notice dated 22nd February, 1968 through their counsel with false allegations and fixing the very date of 24th February, 1968 fixed by the first respondent at an unreasonable place for the execution of the sale deed with a view to cover up their default and to evade the execution of the sale deed in favour of the first respondent; the sixth defendant had again sent another reply notice dated 22nd February, 1968 through another counsel saying that he would be present on 24th February, 1968 at the Sub-Registrar's Office for executing the sale deed, and demanding one-third portion of the sale consideration for himself. The plaint then refers to the sale of the suit property in favour of the appellant herein and states that the sale was not valid and binding on the first respondent. Under these circumstances, the first respondent prayed for a decree for specific performance of the agreement under Exhibit A-1.

2. There were three written statements, one filed by the first defendant adopted by the third defendant, another by the sixth defendant and the third by the appellant herein. One of the pleas put forward by the defendants in their written statements was that the agreement, Exhibit A-1, was to sell 1.81 acres of punja land and only 0.30 cents of nanja land in survey No. 113/4 alone and that they did not agree to sell 1.44 acres of nanja land in four survey numbers, viz., 113/4 113/6, 113/9 and 113/2. The appellant herein contended that he was a bona fide purchaser for value without notice of Exhibit A-1.

On these pleadings, the following issues were framed for trial:

1. Whether the defendants 1 to 9 agreed to sell R.S. Nos. 113/6, 113/9 and 113/2 to Rajamanickam and Periathayammal?

2. Whether Rajamanickam and Periathayammal have assigned any right in respect of R.S. No. 113/6, 112/9 and 113/2 in favour of the plaintiff under the document dated 25th October, 1967?

3. Whether the plaintiff is entitled to any relief in respect of R.S. Nos. 113/6, 113/9 and 113/2?

4. Whether the 10th defendant is not a bona fide transferee for value of the share of defendants 1 and 3 without notice of the alleged contract for sale?

5. Whether the plaintiff is entitled to the relief of specific performance in respect of all or any of the items of the suit properties?

6. Whether the plaintiff is entitled to any mesne profits?

7. To what relief is the plaintiff entitled? The following issue Was framed as an additional issue on 15th June, 1970:

1. Whether the plaintiff will be entitled to any relief regarding S. Nos. 113/2 and the well in 113/10?

3. The learned Principal Subordinate Judge of Salem, by his judgment and decree dated 30th August, 1971, held that the agreement was in respect of 1.44 acres of nanja land comprised in four survey numbers and 1.81 acres of punja land and that the first respondent as an assignee of the agreement Exhibit A-1 was entitled to have that agreement enforced against the entire extent. He also held that the appellant herein had notice of the agreement Exhibit A-1, before he purchased the property under Exhibit B-9. With the result, the suit instituted by the first respondent was decreed by the learned Subordinate Judge. It is against this judgment and decree the present appeal has been filed.

4. The learned Counsel for the appellant put forward three contentions before me: (1) The extent agreed to be conveyed with regard to the nanja land was only 30 cents in survey No. 113/4 and not 1.44 acres comprised in four survey numbers ; (ii) The appellant was a bona fide purchaser for value without notice of the agreement Exhibit A-1; (iii) In any event a decree for specific performance being a discretionary relief, the first respondent herein was not entitled to the exercise of that discretion in his favour, having regard to the several false statements made by him and false case put forward by him. I shall consider these points in that order.

5. As far as the first point is concerned, it is clear that the parties had agreed to sell only 1.44 acres of nanja land and 1.81 acres of punja land. The agreement Exhibit A-1 dated 14th October, 1967 in the portion relating to the description of property, refers to 1.81 acres of punja land, about which there is no dispute but while referring to 1.44 acres of nanja land gives the survey number only as 113/4. It is the admitted case that survey NO. 113/4 comprises only 30 cents. Equally it is the admitted case that defendants 1 to 9 owned 1.44 acres of nanja land in four survey numbers, the other three survey numbers being 113/2, 113/6 and 113/9. Consequently the question for consideration is whether, even though Exhibit A-1 refers to 1.44 acres of nanja land, the agreement was only in respect of 30 cents of nanja land, because it refers only to survey NO. 113/4. I am of the opinion that the appellant has no case on this point. The total extent of land agreed to be conveyed under Exhibit A-1 was 1.81 acres of punja land and 1.44 acres of nanja land, totalling 3 acres and 25 cents. Admittedly the family of defendants 1 to 9 owned these 3 acres 25 cents of land and the agreement, Exhibit A-1, was entered into in respect of the entire land owned by the family. Therefore simply because only one survey number was mentioned in Exhibit A-1 and the other survey numbers were not mentioned, it could not be contended that the first respondent was entitled to have only 30 cents in survey No. 113/4 conveyed to him and not the balance of 1.44 acres of nanja land. This conclusion of mine derives support from two other circumstances also. Exhibit A-6 dated 16th February, 1968 is a notice issued by the first respondent herein and his assignors to defendants 1 to 3, 5 and 6 calling upon them to go to the Sub-Registrar's office on 24th February, 1968, to execute a proper sale deed in respect of the property agreed to be conveyed under Exhibit A-1. This notice also gives the extent of the nanja land as 1.44 acres. Though a reply was sent to this notice by the sixth defendant as well as the other defendants separately no objection whatever was taken to this extent and no case was put forward that what was agreed to be sold was only 30 cents. The second circumstance is that under Exhibit B-9 the appellant himself purchased only 2/3 of the suit property for a consideration of Rs. 10,000. The first defendant, as D.W. 1, stated in her evidence that the price for which the 2/3 was sold to the appellant under Exhibit B-9 was the proper price. I have already referred to the fact that the total consideration mentioned in Exhibit A-1 was Rs. 15,500. Therefore, the price of 2/3 of the property roughly works out to Rs. 10,000 for which alone the appellant purchased 2/3 of the property under Exhibit B-9. This further confirms the conclusion that what was agreed to be sold under Exhibit A-1 was 1.44 acres of nanja land and 1.81 acres of punja land, for a consideration of Rs. 15,500 and not 30 cents of nanja land and 1.81 acres of punja land. Hence ray conclusion on the first point is that the agreement was for the sale of 1.44 acres of nanja land and 1.81 acres of punja land.

6. As far as the second point is concerned there is the evidence of P.W. 4 who was admittedly a tenant of the lands, who had stated that two days after Exhibit A-8, i.e. after 24th February, 1968, D.W. 2 (father of the appellant), who alone negotiated the sale under Exhibit B-9, came to the land and asked him not to plant sugarcane, as he was going to purchase the land, and that P.W. 4 told him that there was an agreement to sell the property to the first respondent and that therefore he was not going to stop the cultivation. There is absolutely no justification whatever for rejecting this evidence of P.W. 4. Admittedly D.W. 2 was the owner of the land, just a plot removed from the suit land, and, even according to the evidence of D.W. 2, the father of the appellant, he himself knew two or three years even prior to 26th February, 1963 that the suit land would be coming up for sale and he was prepared to purchase the land. Though he denied that he ever approached P.W. 4, as stated by P.W. 4, it is clear that, as the owner of the land in the area and as a person who was going to purchase the suit land, he should have met P.W. 4. Other circumstances also confirm this view, I have already referred to the fact that the first respondent and his assignors sent a notice to the defendants asking them to go to the Sub-Registrar's office on 24th February, 1968. According to D.W. 2, on 26th February, 1968. D.W. 1 met him and offered to sell the land to him and the terms were settled and Exhibit B-9 was executed on 27th February, 1968. It is clear that there had been a tremendous hurry in executing the sale deed. Though the lands were situated within the jurisdiction of the Sub-Registrar of Pethanaickenpalayam, the sale deed was executed and registered in the office of the District Registrar at Salem. Secondly, the sale deed was executed only by defendants 1 and 3 in respect of their 2/3 share in the property and the property that was sold by them was their 2/3 share according to the final decree for partition passed between them. Notwithstanding this fact and the fact that Exhibit B-9 refers to a final decree, no description of the shares allotted to defendants 1 and 3 is given in Exhibit B-9. As a matter of fact, Exhibit B-9 asked the appellant to obtain a copy of the final decree from the advocate. Even D.W. 2 admits that he met the advocate and got the particulars. The very fact that Exhibit B-9 is bereft of particulars with regard to the description of the property sold clearly shows that the whole thing was done in a hurry and that it was done in such a great hurry only with the knowledge of the existence of Exhibit A-1 and for the purpose of preventing the first respondent herein from taking steps to have the agreement enforced. As a matter of fact, D.W. 2 admitted that he did not verify the particulars of the property though he stated that he satisfied himself with regard to the absence of any encumbrance over the property from enquiries made by him at the office. On the face of it, such an explanation on the part of D.W. 2 is unacceptable, particularly in view of the fact that D.W. 2 was himself a village munsif. Under these circumstances, I agree with the conclusion of the learned Subordinate Judge that the appellant was not a bona fide purchaser for value without notice of the agreement, Exhibit A-1 and this is my finding on point NO. 2.

7. Then there remains the third point with regard to the discretionary nature of the relief and whether the first respondent is entitled to the exercise of that discretion in his favour. It may be mentioned that the trial Court has not considered this aspect of the matter at all. It is, however, clear that the first respondent has set up false pleas in the plaint and has uttered falsehood in his evidence on very important and vital features with reference to his right to obtain specific performance of the agreement, Exhibit A-1. I have already referred to the fact that on 16th February, 1968 a notice under the original of Exhibit A-6 was sent by the first respondent herein and his assignors to defendants 1 to 3 and 5 and 6 calling upon them to be present at the Sub-Registrar's office at Pethanaickenpalayam on 24th February, 1968 for the purpose of executing a sale deed. In this notice it was asserted that the first respondent was ready and willing to perform his part of the contract, that he tendered the sale price on 14th February, 1968 and that even prior to that he tendered the balance of the sale price several times and called upon the defendants to execute the sale deed, but they went on evading the same. This fact is referred to in the plaint wherein it is further stated that on 24th February, 1968 defendants 1, 3 and 6 had come to the Sub-Registrar's office, but evaded to execute the sale deed in favour of the first respondent. As against this case of the first respondent, the case of the defendant was that after the receipt of the notice under Exhibit A-6, they sent a reply under Exhibit A-9 dated 22nd February, 1968 through counsel stating that it would be proper to have a draft settled before executing the sale deed, that therefore the first respondent should go to the office of the counsel who sent the notice on behalf of the defendants, on 24th February 1968, where the defendants would be waiting from 9 A.M. till 12 noon and that, if the first respondent wanted, they were prepared to go over to the office of his counsel. According to them, having waited in the office of their counsel and the first respondent not having turned up, they went to the Sub-Registrar's office at Pethanaiokenpalayam and waited there till 5 P.M. but the first respondent did not turn up at the Sub-Registrar's office. Evidence has been produced by both the parties to show that they were present at the Sub-Registrar's office. Exhibit A-8 is a registration copy of a mortgage deed for Rs. 7,000 executed by the first respondent in favour of one Perianna Gounder on 24th February, 1969 and registered on that day, showing that the first respondent went to the Sub-Registrar's- office at Pethanaickenpalayam, on 24th February, 1968. On the other hand, Exhibit B-6 dated 24th February, 1968 is the registration copy of a mortgage deed for Rs. 300 executed by one Periasami Naicker in favour of Ramaswami, showing that D.W. 1 was an attesting witness in that case before the Sub Registrar. Therefore the evidence clearly establishes that bath the parties were present at the Sub-Registrar's office, though in the pleadings the first respondent stated that the other defendant evaded executing the sale deed. However, in the course of his evidence as P.W. 3 the first respondent completely went back on his pleadings in the plaint. He categorically stated in his evidence that defendants 1, 3 and 6 did not come to the Sub-Registrar's office, but evaded executing the sale deed, he went to the extent of stating that he did not make any such statement in the plaint and thereafter he went back on this statement and stated that he did not read the plaint. Consequently the first respondent stands condemned by his own evidence, as a liar, as far as this part of the case is concerned.

8. There is yet another aspect to be mentioned in this behalf. I have already referred to the fact that in reply to Exhibit A-6, a notice was sent under Exhibit A-9 on 22nd February, 1968 by the defendants stating that they would be waiting at the office of their counsel on 24th February, 1968 and asking the first respondent also to come there. In the plaint the first respondent stated that such a notice had been received. In his evidence he stated that by 24th February, 1968 such a notice was not received and that he did not verify from his counsel whether such a reply had been received or not. This is, yet another falsehood as far as the first respondent is concerned.

9. Thirdly, with regard to another vital matter, there is a complete falsehood uttered by the first respondent. I have already referred to Exhibit A-6 as well as the averments contained in the plaint, wherein the first respondent stated that on 14th February, 1969 and even prior to it he had tendered the entire balance of Rs. 14,000 to the defendants and called upon them to execute the sale deed, but they were evading to execute the sale deed. On the other hand it is clear from his own evidence that Exhibit A-8 was a mortgage executed by him on 24th February, 1968 for Rs. 7,000 for the purpose of getting that amount for paying to the defendants for obtaining the sale deed. In one portion of his evidence in chief-examination he stated that he executed the mortgage, Exhibit A-8 for getting money for the purchase of the suit property. In his subsequent evidence, however, he went back on this statement and stated that he had borrowed a sum of Rs. 7,000 from Rama Gounder, that for the balance he had his own money, that he had thus the sum of Rs. 14,000 ready with him and that the mortgage under Exhibit A-8 was for the purpose of repaying the handloan obtained from Rama Gounder. Apart from there being no evidence to support this case of borrowing Rs. 7,000 from Rama Goundar as handloan, the mortgage Exhibit A-8 itself recites that the amount borrowed under that mortgage was only for the purpose of purchasing the land and therefore the same is consistent with his evidence, in chief examination, but not consistent with this evidence in cross-examination. Consequently it will be clear that he obtained the sum of Rs. 7,000 only on 24th February, 1968 for the purpose of making up the amount for the purchase of the suit property and therefore his claim in the plaint as well as in Exhibit A-6 that he had tendered the entire balance of Rs. 14,000 on 14th February, 1968 or prior to that was a false case.

10. Fourthly, in his evidence he stated that on 16th February, 1968 he had purchased the stamp papers for the sale deed in question and that those stamp papers were purchased in his own name, in the name of his mother Muthammal, in the name of his brother Subramaniam, and in the name of his wife, Venkatammal. A perusal of Exhibit A-7 stamp papers again falsifies this case of the first respondent. Exhibit A-7 consists of eleven stamp papers, out of which eight were purchased on 17th February, 1968 and three were purchased on 16th February, 1968. The stamp papers purchased on 17th February, 1968 had been purchased from some vendor at Madurai, and the stamp papers purchased on 16th February, 1968 had been purchased from some vendor at Salem. Of the three papers purchased at Salem, two are in the name of Venkatammal, and one is in the name of Subramaniam. Out of the other stamp papers purchased in Madurai, three are in the name of Muthammal, two are in the name of the first respondent and three are in the name of Subramaniam. Therefore the case of the first respondent that he purchased the stamp papers on 16th February, 1968 is again false. Apart from this, it is doubtful whether the stamp papers could have been purchased on those dates for the purpose of the sale deed in respect of the suit property. If by 14th February, 1968 the first respondent had the entire sum of Rs. 14,000 with him and tendered the same to the defendants for the purchase of the suit property and in that connection he had purchased the stamp papers on 16th February, 1968, it passes one's comprehension as to why the stamp papers should be purchased in several names, such as Muthammal, Venkatammal and Subramaniam, instead of the stamp papers being purchased in the name of the first respondent himself, because, it was he who was going to purchase the property.

11. Thus, with regard to very vital matters, such as his having tendered the amount, his having been present at the Sub Registrar's office and met the defendants, they having refused to execute the sale deed, and his having purchased the stamp papers for the purpose of completing the sale transaction, the first respondent has proved himself to be an absolute liar and has gone to the extent of even denying his own averments made in the plaint.

12. The question for consideration is whether, under such circumstances, the first respondent was entitled to the discretionary relief of a decree for specific performance. In Sririgineedi Subbarayadu v. Kopanathi Tatayya and Ors. (1937) M.W.N. 1158, a Bench of this Court had observed:

The relief sought lies in the discretion of the Court. The discretion of the Court is not arbitrary, but sound and reasonable and must be guided by judicial principles. This is so declared by Section 22 of the Specific Relief Act. Now, in this case, the appellant alleged that he tendered the full amount of the purchase consideration Rs. 6,000 within two months of the agreement having been entered into and he supported this allegation on oath in the witness box. The learned trial Judge refused to believe hint and we consider that he was fully justified in so doing. A plaintiff who is capable of setting up a false case cannot expect a Court of equity to grant him relief.

13. No decision of this Court or of the Supreme Court was brought to my notice dissenting from the principle laid down by the decision referred to above. As a matter of fact, as far as this Court is concerned, the above decision was referred to by two Benches, one in Easwari Amma and Anr. v. M.K. Korah and Ors. : AIR1972Mad339 and the other in an unreported judgment of this Court in Kuppuswami Naidu v. Mannarswami Naidu A.S. Nos. 367 and 696 of 1970, dated 11th April, 1975. Consequently, it will follow that the first respondent herein would not be entitled to the grant of the discretionary relief of specific performance in view of his conduct referred to above.

14. Mr. V. Krishnan, the learned Counsel for the first respondent, did not dispute the above position in law, but he put forward two submissions to negative the claim of the appellant in this behalf. The first contention was that the trial Court had not dealt with this question and had exercised its discretion in favour of the first respondent and that even in the memorandum of grounds of appeal before this Court such an exercise of the discretion was not questioned. The second was that it was not every falsity that would disentitle or disable a plaintiff from obtaining the relief of specific performance and that everything depended upon the degree of the falsity. As far as the first point is concerned, on a perusal of the judgment of the trial Court it would appear that the trial Court has not applied its mind to the question of the exercise of the discretion at all; it has straightaway proceeded to consider the first two questions, namely, whether under Exhibit A-1 an extent of 1.44 acres of nanja land situated in all the four survey numbers was agreed to be conveyed, and whether the appellant herein was a bona fide purchaser for value without notice of Exhibit A-1. It did not consider the question of the grant of a decree for specific performance being in the discretion of the Court. It is true that the point was not raised even in the grounds of appeal before this Court. However, that point was raised during the hearing of the appeal yesterday and I gave an opportunity to both parties to deal with this point, with reference to any decided case, if necessary, and gave time till today. Since the question raised did not involve any consideration or investigation of new facts, but merely involved the application of settled principles of law to the facts already on record, I do not think that the failure on the part of the appellant to raise this point in the grounds of appeal will debar him from raising this plea in the course of the hearing of the appeal, particularly when I had given sufficient opportunity to the first respondent to meet the point.

15. As far as the second point is concerned, I am clearly of the opinion that the falsity of the case of the first respondent in the present case directly impinges on the essential ingredients and elements necessary for claiming the relief of specific performance. I have already referred to the fact that the first respondent had stated in the plaint and in his evidence that he had tendered the entire balance amount of Rs. 14,000 on 14th February, 1968 and earlier and that it was the defendants who evaded to execute the sale deed, and this case of his has been found to be false. Equally, the first respondent under Exhibit A-6 had called upon the other defendants to be present at the Sub-Registrar's Office on 24th February, 1968 for the purpose of executing the sale deed, and with regard to this matter also the first respondent's evidence is directly opposed to his own case in the plaint. Thirdly, as part of his claim to have been ready and willing to perform his part of the contract, he spoke to the fact that he had purchased the stamp papers on 16th February, 1968, and that too has been found to be false. Therefore, the falsity of the case put forward by the first respondent did not relate to incidental or ancillary matters, but was directly concerned with his allegations on the basis of which alone he claimed the relief of specific performance of the agreement.

16. Under these circumstances, I am definitely of the opinion that the falsity of the case put forward by the first respondent herein clearly disentitles him from obtaining the discretionary relief of specific performance of the agreement, Exhibit A-1. Hence the appeal is allowed, the judgment and decree of the trial Court are set aside, and the suit instituted by the first respondent for specific performance of the agreement, Exhibit A-1, will stand dismissed. In view of the fact that the point on which the appeal succeeds has not been taken even in the grounds of appeal, I do not consider that this is a proper case in which I should award costs in favour of the appellant. For the same reason, the parties shall bear their respective costs in the trial Court also.


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