v.brinda vs subramanian (died) ... plaintiff on 6 september, 2012

Madras High CourtV.Brinda vs Subramanian (Died) ... Plaintiff on 6 September, 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.09.2012

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

S.A.Nos.1640 and 1641 of 2003

S.A.No.1640 of 2003:

1.V.Brinda2.Sankar3.Minor Malathi4.Minor Abirami5.Minor Shaktivel .... Appellants/Appellants/Defendants 2 to 6

(Minors 3 to 5 are represented by their Natural Guardian Motherthe 1st Appellant herein) Vs.

1.Subramanian (Died) ... Plaintiff

2.Parijatham3.Padma4.Gopal5.Sathasivam6.Lakshmipathi ... Respondents/Respondents/Plaintiff

(RR 2 to 6 brought on record as LRs of the deceased sole Respondent videorder dated 25.01.2012 made inC.M.P.Nos.601 to 606 of 2011 in S.A.No.1640 of 2003)

Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 11.09.2001 in A.S.No.21 of 1999 on the file of the Learned Subordinate Judge, Ranipet, Vellore District, in confirming the Judgment and Decree dated 26.03.1999 in O.S.No.69 of 1993 on the file of the Learned District Munsif, Ranipet.

S.A.No.1641 of 2003:

1.V.Brinda2.Sankar3.Minor Malathi

V.Brinda vs Subramanian (Died) ... Plaintiff on 6 September, 2012

Indian Kanoon - http://indiankanoon.org/doc/132910663/ 1

4.Minor Abirami5.Minor Shaktivel .... Appellants/Appellants/Plaintiffs 2 to 6

(Minors 3 to 5 are represented by their Natural Guardian Motherthe 1st Appellant herein) Vs.

1.Subramanian (Died) ... Defendant

2.Parijatham3.Padma4.Gopal5.Sathasivam6.Lakshmipathi ... Respondents/Respondents/Plaintiff

(RR 2 to 6 brought on record as LRs of the deceased sole Respondent videorder dated 25.01.2012 made inC.M.P.Nos.601 to 606 of 2011 in S.A.No.1641 of 2003)

Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 11.09.2001 in A.S.No.22 of 1999 on the file of the Learned Subordinate Judge, Ranipet, Vellore District, in confirming the Judgment and Decree dated 26.03.1999 in O.S.No.477 of 1992 on the file of the Learned District Munsif, Ranipet.

For Appellants : Mr.R.Margabandhu (In both Second Appeals)

For Respondents : Mr.A.Gouthaman (In both Second Appeals)

COMMON JUDGMENT

The Appellants/Defendants have preferred Second Appeal No.1640 of 2003 as against the Judgment and Decree dated 11.09.2001 in A.S.No.21 of 1999 passed by the Learned Subordinate Judge, Ranipet, Vellore District.

The Appellants/Plaintiffs have preferred Second Appeal No.1641 of 2003 as against the Judgment and Decree dated 11.09.2001 in A.S.No.22 of 1999 passed by the Learned Subordinate Judge, Ranipet, Vellore District.

2.The Germane Plaint facts in O.S.No.69 of 1993 [Filed by the Plaintiff/1st Respondent in S.A.No.1640 of 2003] are set out hereunder: (i)The properties described in the plaint schedule and certain other properties were allotted to the 1st Defendant as per partition which took place in the family on 10.12.1978. The 1st Respondent/ Plaintiff (later deceased) and other brothers were allotted their respective shares in the said division. After the division in the family, the 1st Defendant borrowed a sum of Rs.1,300/- from the 1st Respondent/Plaintiff (later deceased), Rs.400/- from one Sorupan and Rs.500/- from Pappa of Katpadi. During the first week of December 1982, for discharging these debts and also for money required by the 1st Defendant for family expenses, he agreed to sell the suit properties at Rs.60/- per cent of land. Thereupon, on 24.12.1982, the 1st Defendant entered into an agreement with the 1st Respondent/Plaintiff (later deceased) for sale of the suit properties for Rs.3,555/-. The sale price comprised of the debts mentioned above and a sum of Rs.1,355/- was received in cash on the date of agreement. The entire sale price was paid to the 1st Defendant by the 1st Respondent/Plaintiff. In part performance of the agreement of sale, the 1st Defendant put the 1st Respondent/Plaintiff in possession of the suit properties. Ever since the date of agreement, the 1st Respondent/Plaintiff was in possession of the suit properties in part performance of the agreement of sale. The 1st Defendant undertook to execute a registered sale deed in respect of the suit properties in favour of the 1st Respondent/ Plaintiff whenever he called upon him to do so.

(ii)On 01.11.1992, the 1st Defendant in O.S.No.69/1993 (later deceased) issued a Lawyer's Notice to the 1st Respondent/Plaintiff mentioning that the 1st Respondent/Plaintiff and members of his family were attempting to interfere with the alleged possession of the suit properties. The 1st Respondent/Plaintiff caused a reply on 08.11.1992 setting forth the true facts and called upon the 1st Defendant to execute and register a Sale Deed in his favour in respect of the suit properties. But the 1st Defendant had not complied with the demand.

(iii)The 1st Respondent/Plaintiff discharged the two debts of Sorupan and Pappa. Since the third debt in a sum of Rs.1,300/- was due to the 1st Respondent/Plaintiff, a sum of Rs.1,355/- was received in cash on the date of sale agreement and the entire sale price was received by the 1st Defendant. Therefore, the 1st Defendant was bound to execute and register a conveyance. Therefore, the 1st Respondent/ Plaintiff (in O.S.No.69/1993) had filed a suit praying the trial Court to pass a Decree in directing the Appellants 1 to 5 (Defendants 2 to 6) to register a conveyance in respect of the schedule mentioned property in his favour and in default to execute the same through Court.

3.The Written Statement Pleas [filed by the 1st Defendant (since deceased)]: (i)He along with the 1st Respondent/Plaintiff, A.Venkatesan and Shanmugam were three brothers who constituted the members of joint Hindu family. They effected division of their joint family properties as per family arrangement dated 10.12.1978. As per family arrangement, the suit property and other properties were allotted to him and he was in possession and enjoyment of the suit property, ever since from the date of family arrangement dated 10.12.1978 till date.

(ii)In the first week of December, 1992 the 1st Respondent/ Plaintiff and his sons jointly declared in the village that they had some interest in some portion of the property of the 1st Defendant and openly declared to trespass into the properties. Therefore, 1st Defendant issued a notice dated 01.11.1992 warning the 1st Respondent/Plaintiff and his son not to trespass into the suit property for which the 1st Respondent/Plaintiff caused a reply notice dated 08.11.1992 mentioning that the 1st Defendant (later deceased) had executed a sale agreement dated 24.12.1982 agreeing to sell the property in favour of the 1st Respondent/Plaintiff in respect of the suit property and made a false allegation that he was in possession of the suit properties.

(iii)He had not executed any agreement dated 24.12.1982 and further, the alleged agreement was a fabricated and a forged one. Also, he had not borrowed a sum of Rs.1,300/- from the 1st Respondent/Plaintiff. Further, he had not borrowed Rs.400/- from one Sourpan and also not borrowed Rs.500/- from one Pappa of Katpadi. Added further, the 1st Defendant had not agreed to sell the suit properties at the rate of Rs.60/- per cent and had not agreed to sell for Rs.3,555/- and also not received a sum of Rs.1,355/- in cash, in pursuance of any sale agreement. The 1st Defendant had not agreed to execute any sale deed in favour of the 1st Respondent/Plaintiff, whenever he called upon him to do so.

(iv)The 1st Defendant was in possession and enjoyment of the suit property in his own right, title and interest and he had perfected his title by adverse possession also. It was utter fabrication that the 1st Respondent/Plaintiff had discharged Rs.400/- to Sorupan. The 1st Respondent/Plaintiff was not entitled to any right to claim the relief of specific performance of contract. There was no cause of action for the suit. The 1st Defendant filed O.S.No.477 of 1992 for declaration of title and injunction.



4.The Resume of Facts

of the Plaint in O.S.No.477 of 1992 [Filed by the 1st Plaintiff (later deceased)]:

(i)The 1st Plaintiff, 1st Respondent/1st Defendant, one Venkatesan and Shanmugam were brotherswho constituted the members of the joint Hindu family. They effected division of their joint familyproperties under family arrangement dated 10.12.1978. In the partition, the plaint scheduleproperties and other properties were allotted to the share of the 1st Plaintiff (Boopalan). The 1stPlaintiff was in possession and enjoyment of the suit properties in his own right, title and interestand perfected title to the suit property by means of an adverse possession.

(ii)The Defendants 2 to 4 are the sons and 5th Defendant is the wife of the 1st Respondent/ 1stDefendant. They do not have any right of title or interest over the schedule mentioned propertiesand other properties allotted to the share of the 1st Respondent/Plaintiff. For the past one week allof them jointly declared in the village that they had some interest in some portion of the propertiesof the 1st Plaintiff and openly declared that they would trespass into the suit properties and otherproperties. Thereupon, the 1st Plaintiff issued a notice dated 01.11.1992 to the Defendants warningthem not to trespass into the properties for which the Defendants issued a reply notice dated08.11.1992 that the Plaintiff had executed an agreement dated 24.12.1982 agreeing to sell theschedule mentioned properties in favour of the 1st Defendant in regard to the suit properties andthat the Defendants are in possession of the suit properties. The Defendants are not in possession ofthe suit properties.

(iii)The 1st Plaintiff had not received any amount and he had not directed the Defendants todischarge any debt to anybody much less for Rs.3555/-. As such, the Plaintiffs filed a suit seeking therelief of permanent injunction restraining the Defendants, their servants, agents etc. from in anymanner interfering with the 1st Plaintiff's peaceful possession and enjoyment of the suit properties.

5.The Written Statement Averments of the Defendants in O.S.No.477 of 1992:

(i)Admittedly, the suit properties were allotted to the Plaintiff's share in the division that took placeon 10.12.1978. The 1st Plaintiff was allotted in addition to the suit properties certain other propertiesalso towards his share. The averments that during November 1992 they jointly declared that theyhad interest in the suit properties and they would trespass were denied. Repudiating the claim, theDefendants had issued a reply on 08.11.1992 to the Plaintiff's Lawyer's Notice dated 01.11.1992. Itwas false to aver that the Defendants were not in possession of the suit properties. Equally, it wasfalse to state that the Plaintiff was in possession of the suit properties by paying kists.

(ii)The 1st Plaintiff had contracted debts and requested the 1st Defendant to discharge the same, toan extent of Rs.2,200/-. These debts include a sum of RS.1,300/- due to be paid to the 1stDefendant, Rs.400/- due to be paid to Sorupan and Rs.500/- from one Pappa of Katpadi inDecember 1982. At that time, the Plaintiff offered to sell the suit properties at Rs.60/- per cent ofland and entered into a sale agreement to sell the suit properties for a total sum of Rs.3,555/-.



(iii)The 1st Plaintiff, accordingly, executed a sale agreement on 24.12.1982 in favour of the 1stDefendant agreeing to sell the suit properties for Rs.3,555/- and delivered possession of the same.The sale price comprised of three items of debts mentioned aforesaid and a sum of Rs.1,355/-received in cash by the Plaintiff from the 1st Defendant on 24.12.1982. By means of the saidagreement, the Plaintiff undertook to execute a registered Sale Deed in respect of the suit propertieswhenever called upon by the Defendant to do so.

(iv)The 1st Defendant was in possession of the suit properties as part performance of the contract ofsale. The Plaintiff was not in possession of the suit properties and therefore, the claim for injunctionwas incompetent. With a view to ward off the claim for specific performance, the Plaintiff haddeliberately impleaded Defendants 2 to 5. They were neither necessary nor proper parties. Therewas no cause of action for the suit. The suit claim was mala fide and vexatious.

6.Before the trial Court, the two suits O.S.No.477 of 1992 and O.S.No.69 of 1993 were tried jointlyand a common evidence was recorded. On the side of the Plaintiffs, witnesses P.W.1 to P.W.3 wereexamined and documents Exs.A.1 to A.11 were marked. On the side of the Defendants, witnessesD.W.1 to D.W.3 were examined and Exs.B.1 to B.20 were marked.

7.The trial Court, on an appreciation of the available oral and documentary evidence on record,dismissed the suit O.S.No.477 of 1992 [filed by the Appellants in S.A.No.1641/2003] without costs.It decreed the suit O.S.No.69 of 1993 [filed by the Respondent/Plaintiff in S.A.No.1640 of 2003]without costs.

8.The First Appellate Court viz., the Learned Subordinate Judge, anipet, while passing theJudgment in A.S.Nos.21 and 22 of 1999, on 11.09.2001, dismissed both the Appeals and therebyaffirmed the Judgment and Decree passed by the trial Court in O.S.No.477 of 1992 and O.S.No.69 of1993, without costs.

9.At the time of admission of the Second Appeal No.1640 of 2003, the following SubstantialQuestions of Law Nos.1 and 2 were framed by this Court for adjudication:

1.Whether the suit is barred by limitation by not filing the suit within three years from the date ofdenial of execution and refusal to execute the sale deed in pursuance of the suit agreement?

2.Whether the defendant had not complied with provisions of the Section 16(c) of the Specific ReliefAct viz., whether he proved readiness and willingness to perform the contract on his part?

At the time of admission of the Second Appeal No.1641 of 2003, this Court had framed the followingSubstantial Question of Law No.1 for adjudication:

1.Whether the findings of the Courts below can be sustained in view of various materials on recordand whether the appellant is entitled to retain possession?



The Contentions, Discussions and Findings on Substantial Questions of Law Nos.1 and 2 inS.A.No.1640/2003:

10.The Learned Counsel for the Appellants in both the Appeals submits that the trial Court as well asthe First Appellate Court failed to consider the point of limitation in filing the suit for specificperformance of contract.

11.It is the further contention of the Learned Counsel for the Appellants that as per Article 54 of theLimitation Act, 1963, a suit for specific performance should be filed within three years from the dateof commencement of limitation and that the sale agreement was dated 24.12.1982 and that D.W.1(Plaintiff in O.S.No.69 of 1993) had clearly admitted that the same in his evidence and also thatrefusal to execute the Sale Deed as per evidence was in 1984. Therefore, the suit should have beenfiled during the year 1987. However, the suit was filed only during the year 1993. As such, the suitO.S.No.69 of 1993 was hit by the plea of limitation.

12.Added further, the Learned Counsel for the Appellants vehemently contends that both the Courtsheld that limitation begins from 01.01.1992, the date on which the Plaintiff in O.S.No.477 of 1992(Boopalan) issued notice to the Defendant (Subramanian) complaining him not to interfere with thelawful possession of the Plaintiff. Unfortunately, both the Courts had not appreciated the vitaladmission made by P.W.1 relating to the starting point of limitation in a realistic fashion.

13.Advancing his arguments, the Learned Counsel for the Appellants submits that the trial Court aswell as the First Appellate Court failed to adhere to the legal requirements as per Section 16(c) of theSpecific Relief Act 1963 in and by which a party who seeks the relief of specific performance mustplead and prove his readiness and willingness to perform his part of the contract from the date ofagreement till the date of hearing of the suit. Both the Courts held that the Defendant (viz. Plaintiffin O.S.No.69 of 1993) was in possession and was entitled to the decree of specific performance,which was not in conformity with the settled legal position.

14.Yet another plea of the Learned Counsel for the Appellants is that both the Courts erred incoming to the conclusion that the Defendant was given possession of the suit property on the date ofsale agreement dated 24.12.1982 and that he was in possession of the property under partperformance of the contract as per Section 53(A) of the Transfer of Property Act.

15.According to the Appellants, the Defendant [Plaintiff in O.S.No.69 of 1993 (Subramanian)] hadnot proved the possession of the property and he had not cultivated the suit property and also notproduced chitta or adangal for the suit properties to prove and show his enjoyment and also that hehad not paid the kists for the suit lands, as admitted by D.W.1.

16.It is the argument of the Learned Counsel for the Appellants that both the Courts failed to takeinto account that the 1st Plaintiff in O.S.No.477 of 1992 (1st Defendant in O.S.No.69/1993) alonewas in possession of the properties and that he produced Patta-Ex.A.3 and paid kists-Exs.A.4 to A.11to prove his enjoyment of the same.



17.The Learned Counsel for the Appellants takes a legal plea that the Respondents (Plaintiffs inO.S.No.69/1993) had no title to the suit properties and they were not in possession of the same.

18.The Learned Counsel for the Appellants cites the decision of the Hon'ble Supreme Court in RamKumar Agarwal and another V. Thawar Das (Dead) through LRs., AIR 1999 Supreme Court 3248 atpage 3251, wherein, in paragraphs 8 and 9, it is laid down as follows:

"8.Plea under Section 53-A of the Transfer of Property Act raises a mixed question of law and factand therefore cannot be permitted to be urged for the first time at the stage of second appeal. Thatapart, performance or willingness to perform his part of the contract is one of the essentialingredients of the plea of part performance. Thawar Das having failed in proving such willingnessprotection to his possession could not have been claimed by reference to Section 53-A of theTransfer of Property Act.

9.For the foregoing reasons, we find the judgment of the High Court wholly unsustainable in law.The appeals deserve to be allowed, setting aside the judgment of the High Court."

19.Per contra, it is the submission of the Learned Counsel for the Respondents that both the trialCourt as well as the First Appellate Court had taken into account all the relevant facts andcircumstances of the case coupled with oral and documentary evidence on record and very rightlydismissed the Appeal A.S.No.21 of 2001 thereby confirming the Judgment and Decree passed by thetrial Court in favour of the Plaintiff in O.S.No.69 of 1993 and dismissed A.S.No.22 of 2001 therebyconfirming the Judgment and Decree passed by the trial Court in dismissing the suit without costs,which need not be interfered with by this Court sitting in Second Appeal.

20.The Learned Counsel for the Respondents cites the decision of this Court in Chokkammal and 3others V. K.Balraj, (2009) 3 MLJ 1168 & 1169, wherein it is held thus:

"If the consideration as recited in the document Exhibit A-3 refers to Rs.44,000/-, the defendantsare barred by Section 92 of the Evidence Act to contend that the consideration was Rs.1 lakh andthat the payment of only Rs.20,000/- was made on the date when their signatures were obtained on3.12.1992. Having regard to the fact that the entire sale consideration had been paid even on thedate of institution of suit, it is found that the plaintiff has proved his readiness and willingness also.A vendor who had received the entire sale consideration is obliged to hand over possession of theproperty to the purchaser and give warranty for occupation free of disturbances. It is not possible toattribute any grave misconduct on the part of the plaintiff, especially in a case where the entire saleconsideration has been paid, to deny to him the relief of specific performance. On the other hand, itwould be inequitable to deny such a relief in view of Section 10 of Specific Relief Act, which statesthat in respect of immovable property, the breach on the part of the vendor cannot be compensatedonly by money and specific performance of the agreement alone is the adequate remedy."

21.He also relies on the decision of the Hon'ble Supreme Court in Balasaheb Dayandeo Naik (Dead)through LRs. and others V. Appasaheb Dattatraya Pawar, (2008) 2 MLJ 750 (SC) wherein it is heldhereunder:



"In the case of sale of immovable property, there is no presumption as to time being the essence ofthe contract and even where the parties have expressly provided that time is the essence of thecontract, such a stipulation will have to be read along with other provisions of the contract.

Mere fixation of time within which contract is to be performed, does not make the stipulation as tothe time as the essence of the contract."

22.That apart, the Learned Counsel for the Respondents quotes the following decisions:

(a)In the decision of the Hon'ble Supreme Court in Ram Khilona and others V. Sardar and others,2002 (3) CTC 438 at page 444 & 445 in paragraph 13, it is observed as follows:

"13. In Halsbury's Law of England, 4th Edition at page 552 para 1378 it is observed:

"A material alteration is one which varies the rights, liabilities, or legal position of the parties asascertained by the deed in its original state, or otherwise varies the legal effect of the instrument asoriginally expressed, or reduces to certainty some provision which was originally unascertained andas such void, or which may otherwise prejudice the party bound by the deed as originally executed.

The effect of making such an alteration without the consent of the party bound is exactly the same asthat of canceling the deed�.

In paragraph 1383 at page 555 it is observed:

� An alteration made in a deed, after its execution, in some particular which is not material does notin any way effect the validity of the deed; and this is equally the case whether the alteration wasmade by a stranger or by a party to the deed. Thus the date of a deed may well be filled in afterexecution; for a deed takes effect from the date of execution, and is quite good though it is undated.So, also, the names of the occupiers of land conveyed may be inserted in a deed after its execution,where the property assured was sufficiently ascertained without them. It appears that an alterationis not material which does not vary the legal effect of the deed in its original state, but merelyexpresses that which was implied by law in the deed as originally written, or which carries out theintention of the parties already apparent on the face of the deed, provided that the alteration doesnot otherwise prejudice the party liable under it.� It has not been held by the High Court and indeedit was also not contended before us that the agreement of sale, as it stood originally, was invalid forany reason. Indeed the position is accepted that the document did not require any marginalwitnesses, for validity in law. All that has been observed by the High Court is that the covenantees,appellants herein, might have had an apprehension that as the marginal witnesses in the originaldocument were persons closely related to them the Court may not readily accept the case of theplaintiffs regarding the agreement of sale; therefore, they subsequently introduced two independentpersons as marginal witnesses in the document which amounted to interpolating with thedocuments. We find from the discussions in the judgment of the trial Court and the first appellateCourt that the question of addition of marginal witnesses in the document after its execution wasconsidered by the Courts and was not believed. The observations of the first appellate Court quoted



by the High Court in the impugned judgment were mere observations which, as the judgment show,was not taken as a substantial matter against the credibility and acceptability of the case of theplaintiffs in Civil Suit No.58 of 69. As noted earlier, the trial Court and the first appellate Court hadconcurrently accepted the case of the plaintiffs in C.S.No.58 of 69 and had rejected the case of theplaintiffs in C.S.No.58 of 71. The Courts in exercise of the discretionary jurisdiction vested in themunder Section 20 of the Specific Relief Act had decreed the suit for specific performance of theagreement of sale. The High Court in the impugned judgment has not discussed any legality by thecourts below in taking the decision. It appears that the High Court has decided the second appeal ona question neither taken in the memorandum of appeal nor taken in that form before the courtsbelow and has upset the concurrent decisions of the courts on a finding recorded by it. The approachof the High Court in the second appeal was clearly against the law and spirit of Section 100 of theCode of Civil Procedure. Further, as discussed earlier, the view taken by the High Court that theinterpolation said to have been made by the covenantees in the agreement of sale does not standscrutiny under law. As observed earlier such alteration, assuming that it was made subsequently, didnot bring about any change in the validity and enforceability of the agreement of sale. We areconstrained to observe that the finding recorded by the High Court appears to be based on surmise.Therefore, the judgment is clearly unsustainable."

(b)In Govindaraju V. Mariamman, AIR 2005 Supreme Court 1008, at page 1013 in paragraph 16, itis held as follows:

"16.As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appealunder Section 100 is limited to the substantial questions of law framed at the time of admission ofthe appeal or additional substantial question of law framed at a later date after recording reasons forthe same. It was observed in Santosh Hazari's case (AIR 2001 SC 965: 2001 AIR SCW 723) that apoint of law which admits of no two opinions may be a proposition of law but cannot be asubstantial question of law. To be a 'substantial' question of law must be debatable, not previouslysettled by law of the land or a binding precedent and answer to the same will have a material bearingwas to the rights of the parties before the Court. As to what would be the question of law � involvingin the case�, it was observed that to be a question of law' involving in the case' there must be first afoundation for it laid in the pleadings and the question should emerge from the sustainable findingsof fact arrived at by the court of facts and it must be necessary to decide that question of law for ajust and proper decision between the parties."

(c)In Subramaniam Naidu V. T.N.Rajendran, 1999 (1) CTC 529, it is held by this Court that 'thePlaintiff failed to prove that defendant paid money only on promissory note and there is no materialto show last payment was made on promissory note and that the suit is held to be barred bylimitation.'

(d)In Oriental Insurance Company Limited, Divisional Office, No.118-B, West Perumal MaistryStreet, Madurai -1 V. T.Pitchaimani and others, 1998 (I) CTC 162, it is observed that 'the normal ruleis in the absence of any pleading any amount of oral evidence will not be of any use at all since suchoral evidence without pleading is likely to take other party by surprise.'



(e)In P.G.Gopal V. V.Manickavelu (died) and others, (2003) 3 MLJ 696, it is held as under:

"There was no pleading about the benami nature of the holding of the property, no issue was raisedin the suit and such a plea cannot be allowed to be raised for the first time in the second appeal."

(f)In Manicka Poosali (deceased by L.Rs.) and others V. Anjalai Ammal and another, AIR 2005Supreme Court 1777 at page 1781, in paragraph 18, it is held as follows:

"18.Coming to the facts of the present case, we find that the two courts on appreciation of the entireevidence came to the conclusion that the Plaint A Schedule properties at item Nos. 22 to 26 and 29were self-acquired properties of Mottaya Poosali and were not purchased with the funds of the JointHindu Family. The High Court on re-appreciation of evidence has held that these properties werenot the self-acquired properties of Mottaya Poosali and were purchased with the funds of the JointHindu Family. Apart from the fact that the High Court on re-appreciation of evidence could not setaside the findings recorded by the courts below on facts, the fact that these properties were theself-acquired properties is demonstrated by the fact that the properties at item Nos. 22 to 26 and 29were purchased by Mottaya Poosali between 29th April, 1953 to 19th January, 1956. Item Nos.23and 24 were purchased vide sale deed (Ex.B-12), dated 4.6.1952, item No.22 was purchased vide saledeed (Ex.B-13), dated 29.4.1953, item No.26 was purchased vide sale deed (Ex.B-14), dated20.1.1955 and item Nos. 25 and 29 were purchased vide sale deed (Ex.B-15), dated 19.1.1956. Duringthis period Mottaya Poosali was a member of the Joint Hindu Family consisting of himself and histwo brothers Ayyaswamy Poosali and Ammasi Poosali. The partition between Mottaya Poosali,Ayyaswamy Poosali and Ammasi Poosali took place in the year 1970. Had these properties beenpurchased with the funds of the Hindu Joint Family property, then the same would have formedpart of the Joint Hindu Family consisting of Mottaya Poosali, Ayyaswamy Poosali and AmmasiPoosali. In the registered partition deed dated 19th July,1970 between Mottaya Poosali, AyyaswamyPoosali and Ammasi Poosali these properties were treated to be the self-acquired properties ofMottaya Poosai and were not subjected to the partition. Mottaya Poosali in partition was allottedproperties item Nos.11 to 21 and 28 only. This clearly demonstrates that the properties item Nos. 22to 26 and 29 were the self-acquired properties of MottayaPoosali and were treated by him as suchthroughout. Being the self-acquired property. Mottaya Poosali had the absolute right to disposethem of in any manner he liked i.e. by way of sale, gift or will. The findings recorded by the HighCourt that these properties were acquired with the funds of Joint Hindu Family is factually incorrectand the finding recorded by the courts below on facts were correct and the High Court has clearlyerred in reversing the same. The counsel for the appellants is right in his submission that the HighCourt has overstepped in the exercise of its jurisdiction in reversing the concurrent findings of factrecorded by the courts below in a second appeal filed under Section 100 IPC."

(g)In Siddik Mahomed Shah V. Mt.Saran and others, AIR 1930 Privy Council 57(1), it is heldhereunder:

"Where a claim has been never made in the defence presented no amount of evidence can be lookedinto upon a plea which was never put forward."



(h)In Syed Dastagir V. T.R.Gopalakrishna Setty, (1999) 6 Supreme Court Cases 337 at page 341, inparagraph 9, it is held thus:

"9. ... No specific phraseology or language is required to take such a plea. The language in Section16(c) does not require any specific phraseology but only that the plaintiff must aver that he hasperformed or has always been and is willing to perform his part of the contract. So the compliance of"readiness and willingness" has to be in spirit and substance and not in letter and form. So to insistfor a mechanical production of the exact words of a statute is to insist for the form rather than theessence. So the absence of form cannot dissolve an essence if already pleaded."

(i)In P.Ramasamy V. K.Chinnammal, (2011) 2 MLJ 832, 833, it is held thus:

"In all cases, it is not necessary that the plaintiff is expected to send the disputed pronote for expert'sopinion. When the plaintiff proved her case through tangible evidence, the liability shifts to thedefendant and after proving the case by the defendant through direct evidence, the liability onceagain shifts to the plaintiff."

(j)In Hero Vinoth (Minor) V. Seshammal, (2006) 5 Supreme Court Cases 545 at page 546 inparagraphs 20 & 23, it is held as follows:

"To be a question of law "involved in the case" there must be first a foundation for it laid in thepleadings and the question should emerge from the sustainable findings of fact arrived at by court offacts and it must be necessary to decide that question of law for a just and proper decision of thecase. Where the facts required for a point of law have not been pleaded, a litigant should not beallowed to raise that question as a substantial question of law in second appeal. An entirely newpoint raised for the first time before the High Court is not a question involved in the case unless itgoes to the root of the matter.

It will, therefore, depend on the facts and circumstance of each case whether a question of law is asubstantial one and involved in the case or not, the paramount overall consideration being the needfor striking a judicious balance between the indispensable obligation to do justice at all stages andimpelling necessity of avoiding prolongation in the lift of any lis."

23.For fuller and better appreciation of the controversies in dispute between the parties, this Courtmakes a purposeful reference to the evidence of P.W.1 to P.W.3 and D.W.1 to D.W.3.

Depositions of Plaintiffs side:

24.It is the evidence of P.W.1 (Plaintiff in O.S.No.477/1992) that 1st Defendant is his brother and 2to 3 Defendants are brother's sons and that the 5th Defendant is his brother's wife and apart fromthe 1st Defendant, he has two brothers viz., Venkatesan and Shanmugam out of which Venkatesanhas expired and partition has taken place among themselves on 10.12.1978 and the suit propertieshave come to a share and also that he is in enjoyment of the same by paying kists.



25.The evidence of P.W.1 proceeds to the effect that apart from the suit property he owns a thatchedhouse and that Ex.A.3-Patta in respect of suit property is in his name and Exs.A.4 to A.11 are thekists receipts paid by him in respect of the suit property and he has issued Ex.A.1-Notice to theDefendants because he created trouble for which Ex.A.2 is the reply furnished by them.

26.P.W.1 (in his cross examination) adds that he has not entered into any sale agreement with hisbrother- 1st Defendant on 24.12.1982 in respect of 10 to 14 items of five properties in Ex.A.1-SaleAgreement and it is not correct to state that he has to pay a sum of Rs.400/- as debt to one Sorupanand it is not correct to state that he has to owe a sum of Rs.500/- as debt to Pappa of Katpadi andalso that it is not correct to state that he has received a sum of Rs.1,300/- as loan from the 1stDefendant and it is also not correct to state that for wiping out these debts, the property has beenagreed to be sold and on the date of agreement received a sum of Rs.1,355/- and executed anagreement on 24.12.1982 in favour of the 1st Defendant, agreeing to sell per cent at a rate of Rs.60/-for selling 59 > cents of land and that the signature found in the agreement does not belong to him.

27.The evidence of P.W.1 is that he does not know to which properties Exs.A.4 to A.11-Kists Receiptswere related and that he does not know about the passing of an exparte decree in O.S.No.69 of 1993(filed by the 1st Defendant as Plaintiff) in respect of the suit properties.

28.P.W.2, in her evidence, has deposed that the Plaintiff (later deceased) was her husband and afterfiling of the suit, her husband died and in the partition, her husband was allotted the suit propertiesand other properties and based on the partition her husband enjoyed the properties andsubsequently, they are in enjoyment of the same and that the suit properties belong to them andthey are cultivating the same and since the Defendants interfered with their enjoyment and herhusband sent a notice to the Defendants for which the Defendants had given a false reply and it wasnot correct to state that her husband in respect of the suit properties had executed a sale agreementand also that in the suit properties, the Defendants had no manner of right.

29.P.W.2 (in her cross examination) has deposed that she does not know that her husband in orderto d ischarge the loan executed the sa le agreement in favour of the 1s t Defendant(Plaintiff-Subramanian in O.S.No.69/1993) and it was not correct to state that her husbandexecuted the sale agreement in that manner. Moreover, it was wrong to state that her husband onthe same day executed a sale agreement after receipt of the balance amount [other than the loanamount of Rs.1,355/-] and she had not known that her husband handed over the possession of thesuit properties.

30.P.W.3, in his evidence, has deposed that the 1st Plaintiff-Boopalan cultivated the land separately,obtained by him in the partition and after his demise, the 2nd Plaintiff was doing the cultivation andthe 2nd Plaintiff was in possession of the 1st Plaintiff's property.

31.P.W.3 (in his cross examination) has deposed that he does not know about the measurement ofthe property obtained by the 1st Plaintiff in partition and also the survey number and the extent andother details and he does not know that during the life-time of 1st Plaintiff, he obtained loan fromtwo persons and further, he does not know the 1st Plaintiff during his life-time had availed a hand



loan from the 1st Defendant.

Depositions of Defendants Side:

32.D.W.1 (1st Defendant in O.S.No.477/1992), in his evidence has deposed that the 1stPlaintiff-Boopalan was his brother and between him and other brothers partition has taken place on10.12.1978 and each one got 1/4th share of properties and on that basis, the 1st Plaintiff has beenallotted 1/4th share in the properties and his younger brother viz., the 1st Plaintiff-Boopalan,because of his heavy loan, asked him to lend money and accordingly, he received a sum ofRs.1,300/- as loan from him and also that his brother obtained a loan of Rs.300/- from Sorupan andlater stated in the evidence that he received a sum of Rs.400/- as loan and also that hisbrother-Boopalan received a sum of Rs.500/- as loan from Katpadi Pappa.

33.Continuing further, it is the evidence of D.W.1 that in the suit property a portion of 59 < cents ofland was agreed to be sold by 1st Plaintiff-Boopalan at the rate of Rs.60/- per cent and he requestedhim to settle all the loan and the 1st Plaintiff asked him to settle the loan.

34.D.W.1 has added in his evidence that in Ex.B.1 in three pages his brother 1st Plaintiff's signatureis found and that the said agreement-Ex.B.1 has been written at morning 9'o clock and inEx.B.1-Agreement, the loan to be paid by his brother and the loan settled details have been mademention of and from the date of agreement, he is in enjoyment of the suit properties and it is notcorrect to state that the suit property has been cultivated by the Plaintiffs and Exs.B.4 to B.13 are thekists receipts to show that he is in enjoyment of the suit property.

35.D.W.1 (in his cross examination) has deposed that his brother's wife, 2nd Plaintiff-Brinda at thetime of execution of sale agreement, she was not in station and his brother Boopalan and his wife,2nd Plaintiff orally sold the suit property to him and he does not know that because of the troublebetween 1st Plaintiff-Boopalan and his wife, they live separately and 10 years later of the oral sale,the dispute has been raised in respect of the said sale and he complained about Ex.B.1-Agreementbefore the Panchayat but has not given complaint against his brother before the Police Station andthat he had not obtained a cash receipt for paying the amount to Pappa and Sorupan and aftersettling the loan amount to Sorupan and Pappa, availed by his brother-Boopalan on the same dayEx.B.1-Agreement was written and there is no record to show that Plaintiff-Boopalan should payRs.1,300/-.

36.D.W.2 in his evidence has deposed that his brother-Boopalan has executed an oral saledeed-cum-sale agreement in favour of the 1st Defendant to his elder brother Subramanian and thesale agreement has been executed on 24.12.1982 at about 9.10 hours in the morning and he alongwith Munirathinam has signed in the agreement as witnesses and the said agreement has beenwritten by Rajarathinam who has not alive and a portion of the property obtained in partition is theproperty found in Ex.B.1-Agreement and the sale consideration has been written as Rs.3,555/- and asum of Rs.1,355/- has been given in cash to the 1st Plaintiff and from the balance amount viz., a sumof Rs.500/- has been paid to Katpadi Pappa for the loan obtained by his brother and another sum ofRs.400/- has to be paid to Motoor Sorupan Gounder for the loan received by his brother and from



Ex.A.1- date of agreement, the suit property is in enjoyment of his brother-1st Defendant.

37.D.W.3, in his evidence, has stated that he knows to put his signature but does not know how toread and write. Further, he does not know who has cultivated the suit lands and Ex.B.1-Agreementhas been written 15 years ago and in Ex.B.1-Agreement, he has affixed his signature and thatBoopalan is not alive.

38.D.W.3, (in his cross examination), has deposed that Ex.B.1-Agreement has been brought byVenkatesan, 1st Defendant (Subramanian) and Subramanian asked him to put his signature andtherefore, he has affixed his signature and at that time, the 1st Plaintiff-Boopalan has not come andhe does not know whether the signature of 1st Plaintiff has been there and in his presence, the 1stPlaintiff-Boopalan has not affixed his signature.

39.In Ex.A.1-Plaintiffs Lawyer's Notice (Appellants in S.A.No.1641/2003) addressed to theDefendants in O.S.No.477 of 1992, it is, among other things, mentioned that in the partition of jointfamily properties that took place on 10.12.1978, the schedule properties were allotted to the 1stPlaintiff (later deceased) and that he was in possession and enjoyment of the schedule properties inhis own right, title and interest and that he perfected title to those properties by means of an adversepossession. Further, it is mentioned that the Defendants are going to trespass into a portion of theschedule described properties and that they have no manner of title or interest to do so etc.

40.In Ex.A.2-Reply Lawyer's Notice of the Defendants addressed to the Plaintiffs' Lawyer dated08.11.1992, it is, inter alia, mentioned that the 1st Plaintiff had contracted debts and requested the1st Respondent/1st Defendant to discharge the same and consequently, the 1st Respondent/1stDefendant discharged the debts to the tune of Rs.3,555/- and thereupon, the 1st Plaintiff agreed toconvey an extent of 59 < cents [items 10 to 14 mentioned in the notice under reply] by executing adocument in favour of the 1st Respondent/1st Defendant on 24.12.1982 etc. Also, it is mentionedthat the 1st Respondent/1st Defendant and members of his family are in possession and enjoymentof these items of properties by paying kists etc.

41.Ex.B.1 is the oral Sale Deed dated 24.12.1982 executed by the 1st Plaintiff (later deceased) to andin favour of the 1st Respondent/ 1st Defendant (later deceased) wherein it is mentioned that the 1stPlaintiff had agreed to sell the schedule mentioned lands in the survey numbers mentioned thereinat a cost of Rs.60/- per cent in respect of his share 0.59 < cents for Rs.3,555/-.

42.In Ex.B.1-Sale deed, it is mentioned that the 1st Plaintiff-Boopalan had to pay a balance ofRs.1,300/-, to pay a balance sum of Rs.400/- to Sorupan and to pay a sum of Rs.500/- to KatpadiPappa and in all, there remains a balance of Rs.2,200/- to be paid. Moreover, it is mentioned thatthe aforesaid balance of Rs.2,200/- was to be settled by the 1st Respondent/1st Defendant(Subramanian). Further, the 1st Plaintiff in order to settle his urgent debts and also for meeting outthe family expenses, on 24.12.1982 received a sum of Rs.1,355/- from the 1st Respondent/1stDefendant. Also, it is mentioned that when the 1st Plaintiff was called by the 1st Respondent/1stDefendant, he would come and register the Sale Deed. Finally, in the schedule portion, it ismentioned that the lands to an extent of 0.59 < cents in the survey numbers mentioned therein were



sold through an oral sale.

43.At this stage, this Court points out that a period of limitation prescribed for the relief of specificperformance is three years which runs from the date when the cause of action has accrued.

44.Further, in a suit for specific performance, the evidence of proof of agreement must be absolutelyclear as per the decision in Ganesh Shet V. Dr.C.S.G.K.Setty and othres, AIR 1998 Supreme Court2216.

45.In a suit for specific performance, a person must aver and establish that he has performed or hasalways been ready and willing to perform the essential terms of contract which are to be performedby him. Added further, as per Article 54 of the Limitation Act, 1963, a suit for specific performanceof contract is to be filed within three years period from the date fixed for performance or, if no suchdate is fixed, when the Plaintiff has noticed that performance is refused.

46.Article 54 of the Limitation Act, 1963 runs as follows:

For Specific Performance Three Years The date fixed for theof a contract. Performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.

47.It cannot be lost sight of that the phrase occurring in the third column of Article 113 of theLimitation Act, 1908, 'the date fixed for performance' must be not only a date which can beidentified without any doubt as a particular point of time, but it should also be a date which theparties intended should be the date when the contract could be performed as per the decision inLakshminarayana Reddiar V. Singaravelu Naicker and another, AIR 1963 Madras 24 (V 50 C 10).

48.If the date is to be ascertained depending upon a event which is not certain to happen, then, thefirst part of Article 54 of the Limitation Act is not applicable. In such an eventuality, it is only thelatter part of Article 54 of the Limitation Act will apply, by treating it as a case in which no date isfixed for performance and the limitation will be three years from the date when the Plaintiff hasnotice that performance has been refused.

49.Continuing further, Section 54 of the Transfer of Property Act, 1882 provides that such a contractof sale does not create as in English Law any equitable estate in immovable property which is thesubject matter of contract as per the decision of the Hon'ble Supreme Court in Soni Lalji Jetha(deceased) through his L.Rs. V. Soni Kalidas Devchand and others, AIR 1967 Supreme Court 978.

50.The limitation in case of suit for specific performance of contract starts from the date of refusal toperform part of the contract. The suit filed beyond three years period is barred by limitation as perthe decision of the Hon'ble Supreme Court in Smt.Shakuntala V. Narayan Gundoji Chavan andothers, AIR 2000 Supreme Court 3621.



51.The act of performance must be such as to referable to a contract. If there is no concludedcontract between the parties, then, a decree for specific performance cannot be ordered by a Court ofLaw, as opined by this Court.

52.A bare perusal of Article 54 of the Limitation Act, 1963 clearly points out that the specificperformance of a contract refers to its actual execution as per terms and conditions. In a suit forspecific performance, there ought to be a concluded contract. The obligations in a concludedcontract undoubtedly operate in personam. More importantly, the contract must be capable of beingenforced by either of the parties against the other person. From the act/conduct of parties, it can bepresumed that time is not the requisite essence of contract and further, when there is also noemphatic refusal to perform, in that event, it is a simple matter of protracting and gaining the time,as opined by this Court.

53.However, if no period/time is fixed by the contract, the same cannot be determined by adeed/document de hors the contract. Also that the time cannot be fixed unilaterally. In law, a suitfor specific performance is to be filed within a reasonable time and if the suit is filed beyond time, itought to be dismissed on that basis. The reason being a party is not expected to remain in a deepslumber for long number of years and during the interregnum, there is a possibility of the characterof the property being changed and also the price/value of the property/properties spiralling at arocket speed.

54.In this connection, this Court deem it appropriate to point out the following decisions:

(a)In the decision of the Hon'ble Supreme Court in Parakunnan Veetill Joseph's Son Mathew V.Nedumbara Kuruvila's Son and others, AIR 1987 Supreme Court 2328, it is held as follows:

"S.20 preserves judicial discretion to Courts as to decreeing specific performance. The Court shouldmeticulously consider all facts and circumstances of the case. The court is not bound to grantspecific performance merely because it is lawful to do so. The motive behind the litigation shouldalso enter into the judicial verdict. The court should take care to see that it is not used as aninstrument of oppression to have an unfair advantage to the plaintiff."

(b)In Veerayee Ammal V. Seeni Ammal, AIR 2001 Supreme Court 2920 at page 2922 & 2923 atparagraph 11, it is observed as follows:

"11.When, concededly, the time was not the essence of the contract, the appellant-plaintiff wasrequired to approach the Court of law within a reasonable time. A Constitution Bench of thisHon'ble Court in Chand Rani (Smt.) (dead) by LRs. v. Kamal Rani (Smt.) (dead) by LRs. (1993 (1)SCC 519 held that in case of sale of immovable property there is no presumption as to time being theessence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to beperformed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii)from the nature of the property; and (iii)from the surrounding circumstances, for example, theobject of making the contract. For the purpose of granting relief, the reasonable time has to beascertained from all the facts and circumstances of the case."



(c)In Adcon Electronics Private Limited V. Daulat and another, AIR 2001 Supreme Court 3712, it islaid down as follows:

"In a suit for specific performance of contract for sale of immovable property containing stipulationthat on execution of the sale deed the possession of the immovable property will be handed over tothe purchaser, it is implied that delivery of possession of the immovable property is part of thedecree of specific performance of contract. But in view of the mandate of sub-section (2) of S.22 ofSpecific Relief Act no relief under Cls. (a) and (b) of sub-section (1) shall be granted by the Courtunless it has been specifically claimed. Thus it follows that no Court can grnat the relief ofpossession of land or other immovable property, subject-matter of the agreement for sale in regardto which specific performance is claimed, unless the possession of the immovable property isspecifically prayed for.

Therefore, when in a suit for specific performance of agreement for sale of the suit property relief ofdelivery of the suit property has not been specifically claimed as such, it cannot be treated as 'suit forland.' In its true sense a suit simpliciter for specific performance of contract for sale of land is a suitfor enforcement of terms of contract. The title to the land as such is not the subject matter of thesuit."

(d)In Mohan Lal (deceased) through his LRs. Kachru and others V. Mira Abdul Gaffar and another,AIR 1996 Supreme Court 910 at page 911, in paragraph 6, it is observed as follows:

"6.Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of thetransferor as a subsequent purchaser, the earlier transferee must plead and prove that he is readyand willing to perform his part of the contract so as to enable him to retain his possession of theimmovable property held under the agreement. The High Court has pointed out that he has notexpressly pleaded this in the written statement. We have gone through the written statement. TheHigh Court is right in its conclusion Except vaguely denying that he is not ready and willing toperform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, theplaintiff must plead in the plaint, his readiness and willingness from the date of the contract till dateof the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish thesame. Equally, when transferee seeks to avail of Section 53-A to retain possession of the propertywhich he had under the contract, it would also be incumbent upon the transferee to plead and provehis readiness and willingness to perform his part of the contract. He who comes to equity must doequity. The doctrine of readiness and willingness is an emphatic way of expression to establish thatthe transferee always abides by the terms of the agreement and is willing to perform his part of thecontract. Part performance, as statutory right is conditioned upon the transferee's continuouswillingness to perform his part of the contract in terms convenanted thereunder."

(e)In Mademsetty Satyanarayana V. G.Yelloji Rao and others, AIR 1965 Supreme Court 1405 at page1410 in paragraph 11, it is held as follows:

"11.The result of the aforesaid discussion of the case law may be briefly stated thus: While inEngland mere delay or laches may be a ground for refusing to give a relief of specific performance, in



India mere delay without such conduct on the part of the plaintiff as would cause prejudice to thedefendant does not empower a Court to refuse such a relief. But as in England so in India, proof ofabandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to thesaid relief, for if abandonment or waiver is established, no question of discretion on the part of theCourt would arise. We have used the expression "waiver" is contractual, and may constitute a causeof action: it is an agreement to release or not to assert a right" ; see Dawson's Bank Ltd. v. NipponMenkwa Kabushiki Kaisha, 62 Ind App 100 at p.108: (AIR 1935 PC 79 at p.82). It is not possible ordesirable to lay down the circumstances under which a Court can exercise its discretion against theplaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff isdirectly responsible in inducing the defendant to change his position to his prejudice or such as tobring about a situation when it would be inequitable to give him such a relief."

(f)In Md.Mohar Ali V. Md.Mamud Ali and others, AIR 1998 Gauhati 92 at page 95, in paragraphs 14and 15, wherein it is observed as follows:

"14.In the latest decision it has been stated that the court in decreeing the suit for specificperformance of contract must take into account that the suit must be filed within reasonable timeand if the suit is filed beyond the reasonable time, it should be dismissed on that ground aloneinasmuch as it cannot be expected that the party will sit tight for all these years and in the meantimethe character of the property is changed, value of the property will go up. All these factors must betaken into account as pointed out by the apex Court.

15.In view of that matter as indicated above I hold that this second appeal is to be allowed forinordinate delay in filing the suit which I thereby do. Accordingly, this second appeal is allowed andthe judgments of both the courts below are set aside and the suit is dismissed without costs."

(g)In Mahadev and others V. Tanabai, (2004) 5 Supreme Court Cases 88, the Hon'ble SupremeCourt has held that 'Merely because suit for specific performance at instance of vendee has becomebarred by limitation or that plea of acquisition of title by adverse possession has been negatived andthat possession was therefore illegal, held, not by itself enough to deny benefit of plea under S.53-A.'

(h)In Shrimant Shamrao Suryavanshi and another V. Pralhad Bhairoba Suryavanshi (dead) by LRs.and others, (2002) 3 Supreme Court Cases 676, it is observed that 'the Law of limitation does notapply to a plea taken in defence by defendant even though that defence as a claim made by him maynot be enforceable in court being barred by limitation.'

55.It is the contention of the Respondents that the trial Court as well as the First Appellate Courthave come to a conclusion that Ex.B.1-Agreement dated 24.12.1982 is a genuine one and that on thedate of Ex.B.1-Agreement, the entire sale consideration has been paid and further, the concurrentfinding of fact rendered by the Courts below may not be interfered with by this Court.

56.On behalf of the Respondents, a specific plea is taken that before the trial Court as well as theFirst Appellate Court question of limitation has not been raised. However, the aspect of limitationhas been dealt with by the Courts below holding that the suit O.S.No.69 of 1993 has been held to be



in time. Consequently, the plea of limitation that the limitation commences from 24.12.1982 isnegatived.

57.Repelling the contention of the Respondents, the Learned Counsel for the Appellants submitsthat D.W.1 (A.Subramanian in O.S.No.477 of 1992), in his cross examination, has deposed that inEx.B.1-Agreement, it is written as 'oral land sale' and also that possession has been handed over inpursuance of the oral sale. Moreover, it is stated that even if it is not registered, it will be construedas 'sale'. Also, D.W.1 has added in his evidence that Ex.B.1 has not been registered and that he calledhis brother-Boopalan (Plaintiff in O.S.No.477 of 1992) to register the Ex.B.1 document, but hisbrother has refused and from the date of sale agreement viz., 24.12.1982, he called his brother forone or two years to get the document registered, but he has not issued any written notice to hisbrother in this regard and also that no complaint has been lodged against his brother, but he made acomplaint before the Panchayat as regards Ex.B.1 document.

58.Taking inspiration from the evidence of D.W.1 that from the date of agreement, one or two yearshe called his brother to register the Ex.B.1-document, but his brother has not acceded to his requestand refused to register the same, the Learned Counsel for the Appellants contends thatEx.B.1-Agreement is dated 24.12.1982 and giving laxity upto two years viz., from the year 1984atleast within three years viz., 1987, the suit for specific performance ought to have been filed by theRespondents (deceased Plaintiff in O.S.No.69 of 1993). But in the instant case, the suit has beenfiled only during the year 1993 and therefore, it is clearly barred by limitation.

59.Furthermore, the Learned Counsel for the Appellants take a categorical plea that question of lawcan be raised at any point of litigation, although the same need not be pleaded. In this connection, itis to be pointed out that in the Written Statement in O.S.No.69 of 1993, specific plea of limitationhas not been raised. However, a plea has been taken that the alleged agreement is a fabricated,forged one.

60.The First Appellate Court, in paragraph 17 of its common Judgment in A.S.Nos.21 and 22 of1999, has observed that after issuance of notice Ex.A.1 dated 01.11.1992 by Boopalan (Plaintiff inO.S.No.477 of 1992), the limitation begins and viewed in that perspective, the suit O.S.No.69 of 1993has been filed within three years and therefore, the contra plea taken on behalf of the other side viz.,Appellants is not to be accepted and is rejected.

61.In Ex.B.1 document styled as 'Oral Sale', no time limit is stipulated. Even though thenomenclature of Ex.B.1 document is mentioned as 'oral sale deed' for Rs.3,555/-, on going throughthe recitals of the entire document, this Court comes to an inevitable conclusion that what remainsto be performed as regards the said document is only registration, execution of sale deed andpayment of stamp duty.

62.It is a well known fact that if an immovable property is worth more than Rs.100/-, it has to becompulsorily registered under Section 54 of the Transfer of Property Act read with 17 of the IndianRegistration Act, 1908. Even though in Ex.B.1 captioned as 'Oral Sale', there is a recital in Tamil thatin case, if registration is not possible, there is no objection to enjoy the property as Sale, yet, on



reading the entire content and purport of Ex.B.1, it is held by this Court that it is only a SaleAgreement.

63.Although on the side of Appellants/Defendants (in O.S.No.69 of 1993), it is projected that thedeceased Boopalan (1st Defendant in O.S.No.69/1993 and Plaintiff in O.S.No.477/1992) had notexecuted any agreement viz., Ex.B.1 dated 24.12.1982 and further that the said agreement is afabricated and forged one, no endeavour has been made on their part to file any interlocutoryapplication before the trial Court to send Ex.B.1-Agreement for an Expert opinion as required underthe Indian Evidence Act, in the considered opinion of this Court. Although Section 73 of the IndianEvidence Act, a comparison of a signature, writing or seal with others admitted or proved can bemade by a Court of Law and that apart, a Judge has got power to compare the signature/writingthrough his naked eyes, yet, such a comparison is hazardous one and not the safer method, asopined by this Court. In the instant case, on the side of the Appellants, it is not established thatEx.B.1-Agreement is a forged one.

64.It is to be pertinently pointed out that Section 91 of the Indian Evidence Act, 1872 applies tobilateral and unilateral documents, in the considered opinion of this Court. Section 92 of the IndianEvidence Act is confined to bilateral documents only. Sections 92 and 91 of the Indian Evidence Actdeal with the question of conflict between oral and documentary evidence. When theparties/individuals have put up their mutual engagement into writing, it is reasonable topresume/infer that they have introduced into the written document every material terms andcircumstances.

65.Indeed, inspite of the recitals in a sale deed regarding payment of consideration of money oralevidence to show that non-payment is admissible as per decision P.C.Chanja V. E.S.I. Corporation(1980) 1 CHN 117.

66.Section 91 of the Indian Evidence Act deals with exclusiveness of documentary evidence.Whereas Section 92 of the Indian Evidence Act deals with conclusiveness as also inclusiveness ofsuch evidence.

67.In case of validity of a document is impeached, the Court is not bound by the 'Paper expression'of the parties and may proceed to enquire into the real transaction between the parties as perdecision in Benimadhab V. Sadasook 2 CWN at page 306 (FB).

68.An oral evidence is held admissible on the face of money receipt to show that the same isfictitious inasmuch as money was paid as per the decision in Chukum V. Shambu AIR 1935 All 346.

69.This Court deem it appropriate to cite the decision in Dobell V. Stevens 3 B & C 623 : 107 ER atpage 864 whereby and whereunder it is held that 'Parol evidence is admissible to show that writingis not always a fully transaction and evidence may be adduced to establish fraud or any other matteraffecting the validity of a document'.



70.In regard to the payment of Rs.1,300/- towards discharge of loan made by D.W.1 (Plaintiff inO.S.No.69 of 1993/1st Defendant in O.S.No.477 of 1992), there is no proof to the satisfaction of thisCourt. Even in the evidence of D.W.1 (A.Subramanian), firstly, he has stated that his brotherBoopalan, because of his heavy indebtedness, has demanded money from him and that Boopalanreceived a sum of Rs.1,300/- from him etc.

71.In fact, D.W.2 in his evidence has deposed that for the 1st Plaintiff (in O.S.No.477/1992) a sum ofRs.1,355/- has been paid and that for the balance amount for the loan contracted by his brother, theloan taken from Katpadi Pappa for Rs.500/- and Motoor Sorupan Gounder's loan of Rs.400/- wereshown as mortgage amount due to be paid by them and that the said loan had been discharged.Except the Ipsi Dixit of D.W.2 to the effect that the loan for a sum of Rs.500/- and Rs.400/-mentioned above were paid and discharged, it is to be pointed out that there was no proof ofacknowledgement/endorsement anywhere in Ex.B.1 document in writing for the discharge of theaforesaid sums. As such, the oral evidence of D.W.2 in this regard is not convincing to satisfy thejudicial conscience of this Court and consequently, the same is not accepted.

72.As a matter of fact, D.W.3 has not spoken anything about the loan of Rs.500/- due to be paid toKatpadi Pappa and another loan of Rs.400/- to Sorupan and also he has not stated anything aboutthe payment of Rs.1,355/- to the Plaintiff in O.S.No.477 of 1992 (Boopalan). In short, on the side ofthe 1st Respondent (Plaintiff in O.S.No.69/1993 and the 1st Defendant in O.S.No.477/1992), it is notestablished that all the amounts mentioned in Ex.B.1 document were duly paid or discharged to thesatisfaction of this Court.

73.Before the trial Court, Sorupan, Pappa of Katpadi, whose debts/loan are directed to bedischarged/settled by Subramanian (Plaintiff in O.S.No.69 of 1993) as per direction of Boopalan(Defendant in O.S.No.69 of 1993), were not examined and also not proved to the satisfaction of thisCourt on behalf of the Plaintiff (later deceased).

74.Inasmuch as the suit O.S.No.69 of 1993 has not been filed by the Plaintiff-Subramanian withinone or two years viz., atleast from the year 1982; within a period of three years limitation viz., duringthe year 1987 and the said suit filed in the year 1993 only, it is held by this Court that suit O.S.No.69of 1993 is clearly barred by limitation, by not filing the suit within three years from the date of denialof execution and refusal to execute the Sale Deed in pursuance of the suit agreement. Since the suitis barred by limitation, the Respondents are not entitled to claim even for refund of any amountmentioned in the Ex.B.1-Agreement dated 24.12.1982. Accordingly, the Substantial Question of LawNo.1 in S.A.No.1640 of 2003 is so answered.

75.In regard to the readiness and willingness to perform his part of the contract, Section 16(c) of theSpecific Relief Act, it is to be pointed out that although in Ex.B.1-Agreement time has not beenspecified, it can only mean that a reasonable time. Further, a reasonable time does not mean thatthere is no breach of contract. The necessity to wait for a reasonable time arises, when the EquityCourt does not regard time to be the gist to make a time, the essence of contract by issuing notice toa purchaser, if the purchaser is found to be delaying the performance of the contract. A contract is tobe performed in a reasonable time without any latches on the part of an individual claiming the



relief of specific performance. The conditions in the contract and the encircling circumstances oughtto be taken into account whether or not time is the essence of the contract.

76.In the instant case on hand, admittedly O.S.No.69 of 1993 has not been filed by thePlaintiff-Subramanian (later deceased) within a period of three years from the date of his refusal toregister the Sale Deed viz., from 1984 � 1987. The suit has been filed only during the year 1993 afterlapse of 9 years from 1984. The delay is so evident that there appears to be an abandonment ofcontract on the part of the Plaintiff-Subramanian. Because of latches on the part of the Plaintiff(Subramanian) in O.S.No.69 of 1993, this Court holds that it amounts to waiver, abandonment oracquiescence. In view of the fact that there is no acceptable/convincing proof on the part of thePlaintiff (Subramanian) (1st Defendant in O.S.No.477/1992) to prove that he has discharged theloan amount of Rs.400/- to one Sorupan, the loan amount of Rs.500/- paid to Pappa of Katpadi andthat other sums alleged to have been paid as mentioned in Ex.B.1 document, for all these reasons,this Court unhesitatingly comes to the conclusion that the Plaintiff � Subramanian in O.S.No.69 of1993 has not proved his readiness and willingness to perform his part of the contract to thesatisfaction of this Court and the Substantial Question of Law No.2 is answered.

The Contentions, Discussions and Findings on Substantial Question of Law No.1 inS.A.No.1641/2003:

77.The Appellants (Legal Representatives of the deceased Plaintiff � Boopalan) submits that inbetween deceased Boopalan and the deceased 1st Respondent/1st Defendant, one Venkatesan andShanmugam as brothers, they constituted members of the Hindu joint family and divided their jointfamily properties as per Family Arrangement dated 10.12.1978 and in the said partition, the plaintschedule properties (in O.S.No.477 of 1992) and other properties were allotted to the deceased 1stPlaintiff (Boopalan) and that the deceased 1st Plaintiff was in possession and enjoyment of the suitproperties in his own right and title. The 1st Plaintiff (since deceased), during his life time, filed asuit praying for the relief of declaration of title in regard to the suit properties and consequent uponhis death, the Appellants have been brought on record as his Legal Representatives. They alsoprayed for the relief of permanent injunction restraining the Defendants, their agents, servants etc.from in any manner interfering with the 1st Plaintiff's peaceful possession and enjoyment of the suitproperties.

78.The Appellants have also pleaded in the Plaint in O.S.No.477 of 1992 to the effect that theRespondents/Defendants have not been in possession of the suit properties and that the deceased1st Plaintiff paid kists, raised crops and enjoyed the suit properties.

79.The Respondents take a plea by stating that the deceased 1st Plaintiff contracted debts andrequested the 1st Respondent/1st Defendant (deceased) to discharge the loan amount of Rs.2,200/-(debts due to the 1st Respondent/1st Defendant was Rs.1,300/-, Rs.400/- to be paid to Sorupan andRs.500/- to one Pappa of Katpadi in December 1982) and that the 1st Respondent/1st Plaintiff offerto sell the suit properties at a price of Rs.60/- per cent of land and accordingly, entered into a saleagreement-Ex.B.1 dated 24.12.1982 to and in favour of the 1st Respondent/1st Defendant.



80.The Respondents/Defendants projected a plea that by means of Ex.B.1-Sale Agreement dated24.12.1982, the 1st Respondent/1st Defendant (later deceased) was put in possession of the suitproperties as part performance of the contract of sale and that the 1st Plaintiff (later deceased) wasnot in possession of the suit properties and hence, the relief of injunction is not maintainable in law.

81.In Ex.B.2-Lawyer's Notice dated 01.11.1992 issued by the 1st Plaintiff (deceased) and addressedto the 1st Respondent/1st Defendant and four others, it is mentioned, among other things, that theydo not have any manner of right, title or interest over the schedule properties and further, they havebeen warned not to attempt trespass and to give disturbance to the peaceful possession andenjoyment of the schedule properties mentioned therein.

82.The Learned Counsel for the Appellants submits that Exs.B.4 to B.20-Land Tax Receipts relate tosome other properties and not the schedule properties and that no adangal and kists receipts havebeen filed. Inasmuch as D.W.3 has deposed in his evidence that he does not know as to who are thepersons cultivating the lands, the appellants are entitled to obtain the relief of declaration of theirtitle in respect of the suit properties and also the relief of permanent injunction because of the factthat the 1st Plaintiff (later deceased) paid kists receipts as evidenced from Exs.A.4 to A.11.

83.In the instant case on hand, there is no proof for handing over possession by Boopalan (Plaintiffin O.S.No.477/1992 and the 1st Defendant in O.S.No.69/1993) because of the fact that intermittentreceipts from Exs.A.4 to A.11 have been filed on the side of the Plaintiffs in O.S.No.477 of 1992.

84.It is not out of place for this Court to make a significant mention that mere production of receiptsExs.B.4 to B.20 on the side of the 1st Respondent/Plaintiff (in O.S.No.69 of 1993) will not establishconclusively that Boopalan (Plaintiff in O.S.No.477/1992 and the 1st Defendant in O.S.No.69/1993)has handed over possession of Ex.B.1 properties. The production of Exs.A.4 to A.11-Kists Receipts inthe name of Boopalan as intermittent documents is not fatal or a defective one. Moreover, takinginto consideration of the evidence adduced by parties in both the suits, the Appellants (Plaintiffs inO.S.No.477/1992) have a better and acceptable evidence/better features of the case in their favourcompared to that of Respondents (Defendants in O.S.No.477/1992) and therefore, there are notangible reasons to reject the Exs.A.4 to A.11-Kists Receipts and in fact, they are accepted by thisCourt.

85.Proceeding further, P.W.1 (Plaintiff in O.S.No.477 of 1992), in his evidence, has deposed thatEx.A.3-Patta relates to the suit properties and Exs.A.4 to A.11 are the kists receipts paid by him.D.W.1, in his evidence, has stated that Exs.B.14 to B.20 are the seven land tax receipts paid by himin respect of the suit properties. Though on the side of the Respondents (Defendants inO.S.No.477/1992), before the trial Court, Exs.B.4 to B.20-Land Tax Kists Receipts have been filed,to establish that they are in occupation and enjoyment of the suit properties, this Court is of theconsidered view that the Respondents have not made any endeavour to correlate the said kistsreceipts to that of the suit properties and that too when the Appellants have taken a categorical pleathat they do not relate to the suit properties and it refers to some other property.



86.It is to be remembered that burden of proof is not static under the Indian Evidence Act. Thependulum shifts from one side to another more often than not. To put it differently, it is notestablished on the part of the Respondents, by any satisfactory evidence to this Court, that they areenjoying the suit properties. At this stage, this Court aptly points out that on the side of Respondents(Defendants in O.S.No.477/ 1992), no kists receipts have been filed beginning from the year 1982(after the execution of Ex.B.1-Agreement on 24.12.1982) till February 1987, which is clearly anadverse circumstance which goes against them, in the considered opinion of this Court. Even P.W.2,the wife of the deceased Plaintiff (Boopalan), in her evidence, has clearly deposed that it is notcorrect to state that Exs.A.4 to A.11-Kists Receipts, they do not reflect their enjoyment of suitproperties.

87.Already, this Court has held in S.A.No.1640 of 2003 that the Respondents are not entitled to getthe relief of specific performance and also this Court has held that the said suit for specificperformance filed by the Respondents/Plaintiffs in O.S.No.69 of 1993 is barred by the plea oflimitation.

88.In the present case on hand, it is not in dispute that the suit properties have fallen to the share ofthe 1st Respondent/Plaintiff (since deceased) as per the Family Arrangement dated 10.12.1978.Further, apart from the suit properties, the other properties have also been allotted in the familyarrangement/partition dated 10.12.1978. Inasmuch as the Appellants are entitled to claim the reliefof their declaration of title in respect of the suit properties in O.S.No.477/1992 on the file of the trialCourt and in view of the fact that they have established that they are in possession and enjoyment ofthe suit properties and also taking note of the fact that the Respondents have no manner of right ortitle or interest in this schedule mentioned properties, this Court holds that the contra findingsrendered by the trial Court in O.S.No.477 of 1992 as well as the First Appellate Court in A.S.No.22 of1999 are unsustainable in the eye of law. Accordingly, the Substantial Question of Law No.1 isanswered in favour of the Appellants. Consequently, both the Second Appeals succeed.

In the Result, The Second Appeal No.1640 of 2003 is allowed, leaving the parties to bear their owncosts. Consequently, the Judgment and Decree of the trial Court in O.S.No.69 of 1993 dated26.03.1999 and the Judgment and Decree of the First Appellate Court in A.S.No.21 of 1999 dated11.09.2001 are set aside by this Court for the reasons assigned in this Second Appeal. Resultantly,the suit O.S.No.69 of 1993 filed by the Plaintiff-Subramanian (later deceased) is dismissed butwithout costs.

The Second Appeal No.1641 of 2003 is allowed, leaving the parties to bear their own costs.Consequently, the Judgment and Decree of the trial Court in O.S.No.477 of 1992 dated 26.03.1999and the Judgment and Decree of the First Appellate Court in A.S.No.22 of 1999 dated 11.09.2001 areset aside by this Court for the reasons assigned in this Second Appeal. Resultantly, the suit inO.S.No.477 of 1992 filed by the Plaintiff-Boopalan (later deceased) and prosecuted by the Appellantsas his Legal Representatives, is decreed as prayed for but without costs.

06.09.2012 Index : Yes Internet : Yes Sgl To



1.The Subordinate Judge, Ranipet, Vellore District.

2.The District Munsif, Ranipet.

M.VENUGOPAL, J.

Sgl JUDGMENT IN S.A.Nos.1640 and 1641 of 2003 06.09.2012



v.brinda vs subramanian (died) ... plaintiff on 6 september, 2012

Documents

vellore district

learned subordinate

learned district munsif

minor abirami5

minor shaktivel

appealscommon judgment

minor malathi4

minor malathiv