IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2011 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN S.A.No.1308 of 2006 and M.P.No.1 of 2006 V.S.Alamelu ... Appellant/3rd defendant vs. 1.Thavamani 2.V.S.Sanjeevan 3.V.S.Govindan 4.V.S.Arumugham 5.Madhammal 6.Rajammal 7.Chennammal 8.Nishanthi @ Anitha ... Respondents/Plaintiff, Defendants 1,2,4 to 8 This Second Appeal is filed against the judgment and decree dated 29.09.2006 made in A.S.No.29 of 2005 on the file of the Principal District Court, Dharmapuri at Krishnagiri confirming the judgment and decree dated 30.06.2004 made in O.S.No.100 of 1997 on the file of the Sub Court, Krishnagiri. For Appellant : Mr.P.Rajendran For Respondents : Mr.K.Rajasekaran JUDGMENT This Second Appeal is filed against the judgment and decree dated 29.09.2006 made in A.S.No.29 of 2005 on the file of the Principal District Court, Dharmapuri at Krishnagiri confirming the judgment and decree dated 30.06.2004 made in O.S.No.100 of 1997 on the file of the Sub Court, Krishnagiri. 2.The third defendant in O.S.No.100 of 1997 is the appellant before this Court. She is challenging the concurrent findings of both the Courts below. 3.The facts which are necessary for the purpose of disposing of https://hcservices.ecourts.gov.in/hcservices/ the second appeal are as follows. For the sake of convenience, the parteis are referred to as per their rankings in the suit. 4.On 20th June 1994, an agreement was entered into between the plaintiff and six others viz., (1) M.Sanjeeva Chetty, (2) V.S.Sanjeevan (1st defendant), (3) V.S.Rajamanickam, (4) V.S.Govindan (2nd defendant), (5) V.S.Arumugam (4th defendant) and (6) V.S.Alamelu (3rd defendant). 5.As per the agreement dated 20.06.1994, a sale agreement was entered into between the plaintiff and the above named six persons for a sum of Rs.1,25,000/-. The subject property is lands situated in S.No.863 at No.162, Nagojanhalli, Majaar Velampatti Village, within the jurisdiction of Pochampalli S.R.O. An advance amount of RS.25,000/- was paid on the date of the agreement and as per the above mentioned agreement, the plaintiff was expected to pay the balance amount of Rs.1,00,000/- within eight months i.e., on or before 20.02.1995. Though it is stated in the agreement that all the above said six persons entered into the agreement with the plaintiff, one V.S.Arumugam did not sign the agreement. 6.The plaintiff's counsel sent a notice dated 07.05.1997 to the defendants 1 to 3 and also to Rajammal, wife of late M.Sanjeeva Chetty and Chellammal w/o late V.S.Rajamanickam. From this it is very clear that before sending the notice dated 07.05.1997, M.Sanjeeva Chetty and V.S.Rajamanickam who executed the agreement dated 20.06.1994 along with others, passed away. 7.In the notice dated 07.05.1997, the plaintiff's counsel referred to the agreement dated 20.06.1994 and further stated that M.Sanjeeva Chettry assured that he would bring his son V.S.Arumugam also to sign the sale agreement and only on that basis, the sale agreement was entered into even though it was not signed by the said V.S.Arumugam. As the said V.S.Arumugam did not sign the agreement, this issue was taken up by the plaintiff with Sanjeeva Chetty, but he said that he needed some time to persuade his son. Though the plaintiff raised the balance sale consideration within the stipulated time of eight months, M.Sanjeeva Chetty and V.S.Rajamanickam along with others gained time under some pretext. In the meanwhile, V.S.Rajamanickam passed away leaving behind Chellammal as his legal heir and thereafter Sanjeeva Chetty also passed away, leaving behind the defendants 1 to 3 and Rajammal as his legal heirs. Whenever the plaintiff approached the defendants 1 to 3 and the wives of the deceased persons to execute the sale deed after receiving the balance consideration of Rs.1 lakh, the rights of Rajammal were disputed by the defendants 2 and 3 and they wanted the balance amount to be paid only to them to the total exclusion of Chellammal. Though the plaintiff is ready and willing to perform his part of the contract, the defendants 1 to 3 and the legal heirs of the deceased persons failed to do so and therefore, it is stated in the notice dated https://hcservices.ecourts.gov.in/hcservices/ 07.05.1997 that the notice has been sent calling upon to inform a convenient date so that she would be present before the Sub Registrar, Pochampalli and get the sale deed executed in her favour, after paying the balance amount of Rs.1 lakh, failing which, she would institute a suit for specific performance of the contract. 8.To the notice dated 07.05.1997, a reply notice was sent on behalf of the defendants 2 to 4 and also by Chellammal (the 7th defendant). In the reply dated 14.05.1997, they denied the sale agreement dated 20.06.1994. They pointed out in the reply notice dated 14.05.1997 that the plaintiff is none other than the wife of V.S.Sanjeevan, the first defendant in the suit. Further, it is replied that when the third defendant V.S.Alamelu's marriage was to be celebrated in the month of June, 1994, a sum of Rs.25,000/- was given by the plaintiff's husband V.S.Sanjeevan, the first defendant who is the eldest brother of the family. Therefore, the agreement itself was only a loan document and it is not at all an agreement for sale. Hence, they have replied that the plaintiff is not at all entitled to enforce the alleged document as the agreement of sale. 9.The plaintiff filed O.S.No.100 of 1997 on the file of the Sub Court, Krishnagiri, for specific performance of the agreement date d20.06.1994. Written statement was filed by the third defendant and the suit claim was hotly resisted. By the jdugment and decree dated 30.06.2004, the Sub Judge, Krishnagiri decreed the suit as prayed for and the third defendant in the suit preferred an apepal in A.S.No.29 of 2005 on the file of the Principal District Judge, Dharmapuri at Krishnagiri. By judgment and decree dated 29.09.2006, the appeal filed by the third defendant was dismissed and the judgment and decree dated 30.06.2004 made in O.S.No.100 of 1997 was upheld by the Lower Appellate Court. 10.Aggrieved by the concurrent findings of both the Courts below, the third defendant filed the above Second Appeal and the Second Appeal was admitted by this Court on 28.06.2006 on the following substantial question of law: "Whether Section 92 of the Indian Evidence Act will be a bar for defending the suit agreement of sale, when, it is actually meant to be a loan transaction." 11.Though the second appeal was admitted on the above said substantial question of law, at the time of arguing the second appeal, another substantial question of law viz., whether the suit could be decreed in the absence of any proof that the plaintiff was ready and willing to perform her part of the contract? was also framed and parties are allowed to advance their arguments on both the substantial questions of law. 12.Heard the learned counsel appearing for the appellant and the https://hcservices.ecourts.gov.in/hcservices/ learned counsel appearing for the respondents. I have also gone through the documents available on record. 13.The learned counsel appearing for the appellant contends that the agreement dated 20.06.1994 marked as Ex.A1, before the trial court, is not at all a sale agreement and it is only a document recording a loan transaction and Section 92 of the Indian Evidence Act would not be a bar to take that stand. He further points out that neither the trial court nor the First Appellate Court has gone into the question of readiness and willingness on the part of the plaintiff which is the most vital ingredient in a specific performance suit and therefore, both the substantial questions of law are to be held in favour of the appellant and the appeal is to be allowed. In support of his submissions, the learned counsel appearing for the appellant relied on the following decisions: 1.2010 (10) SCC 512 (Man Kaur (Dead) By LRs. vs. Hartar Singh Sangha) 2.2011 (1) SCC 429 (J.P.Builders and anothers vs. A.Ramadas Rao and another) 3.2008 (5) CTC 428 (M.Ranganathan vs. M.Thulasi Naicker (Deceased) and eight others) 4.2002 (9) SCC 582 (Pushparani S.Sundaram and others vs. Pauline Manomani James (Deceased) and others ) 14.Per contra, the learned counsel appearing for the firs respondent contends that a mere reading of the agreement i.e., Ex.A1 itself would make it very clear that it is a sale agreement and therefore Section 92 is the bar to contend otherwise. Further he states that the plaintiff has proved her readiness and willingness by her preparedness and readiness to pay the balance sale consideration which is clearly mentioned in the notice dated 07.05.1997 and the same thing was also pleaded in the plaint. She also entered into the witness box as PW1 and spoke about her readiness and willingness and in such circumstances, when both the Courts below concurrently held that the plaintiff is ready and willing to perform her part of the contract, the same cannot be set aside by this Court while exercising its power under Section 100 CPC. In support of his submissions, he relied on the decision reported in 2010 (5) MLJ 899 (D.Ananda Moorthy vs. P.Chandrakala). 15.I have considered the rival submissions carefully. 16.First, let me consider the substantial question on which the second appeal was admitted by this Court on 28.12.2006. 17.When the plaintiff asserts that she entered into a sale agreement (marked as Ex.A1), the same was denied and was contended that it was not a sale agreement, but only a document recording the loan transaction. https://hcservices.ecourts.gov.in/hcservices/ 18.Section 91 of the Indian Evidence Act, 1872 states that "when the terms of a contract, or of a grant or of any other disposition of property have been reduced to the form of a document and in all cases, in which, any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases, in which, secondary evidence is admissible under the provisions herein before contained." Therefore, what is contemplated under Section 91 is that when something is to be done to be reduced into writing as per law and such terms are reduced into writing, no evidence shall be given in proof of such document except by the document itself. 19.Section 92 deals with "exclusion of evidence of oral agreement, according to which, when the terms any such contract, grant or other disposition of property, or in matter required by law to be reduced to the form of a document have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties, any such instrument or other representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its term." 20.Sections 91 and 92 would make it very clear that when something is to be proved by a document as required by law, then the terms of the document alone are to be gone into and no other contra evidence can be given in proof of the terms of such contract and once a document has been proved as per Section 91, then Section 92 excludes the evidence of oral agreement. 21.In the light of the above Sections 91 and 92 of the Evidence Act, now let me consider Ex.A1, which according to the plaintiff, is a sale agreement, but, according to the third defendant is only a document recording a loan transaction. 22.Ex.A1 is titled as the "Land Sale Agreement for Rs.1,25,000/-". A perusal of the same would make it very clear that though it was said to have been executed by six persons in favour of the plaintiff, only five persons signed the document and admittedly V.S.Arumugam did not sign the same. Further, it deals with the suit schedule property for a sum of Rs.1,25,000/- and it also records the receipt of an advance of Rs.25,000/- on the date of executing the sale agreement. It stipulates a time limit of eight months i.e., the balance should be paid on or before 20.02.1996. In so far as the default clause contained in the agreement is concerned, it stipulates that if the plaintiff does not pay the balance sale consideration and gets the sale deed executed on or before 20.02.1996, then, she would not only lose the advance amount but also her right to get the sale deed executed. It further stipulates that if the six persons mentioned in the agreement dated 20.06.1994 do not come forward to https://hcservices.ecourts.gov.in/hcservices/ execute the sale deed or want to cheat the plaintiff, then, all the persons should return not only the advance amount of Rs.25,000/- but also should pay a further sum of Rs.25,000/- towards compensation. Thus, it is very clear that a specific performance is not contemplated in the event of the six persons do not come forward to execute the sale deed, but what is contemplated is a compensation of Rs.25,000/- which should be paid along with the advance amount. 23.Stopping here for a moment, this sale agreement though deals with the property and the sale consideration of Rs.1,25,000/-, the contents of the sale agreement would make it very clear that if any default is committed on the side of the land owners, then, what is due to the plaintiff is only a compensation of Rs.25,000/- apart from the refund of the advance amount. In such circumstances, neither Section 91 nor Section 92 would get strictly attracted and if Ex.A1 could be considered as the sale agreement, still its contents would make it clear that excepting the compensation of Rs.25,000/-, no other right would get accrued to the plaintiff. Further, the plaintiff is none other than the wife of the first defendant and therefore, the question of specific performance of the agreement itself does not arise and both the Courts below have lost sight of this vital fact. Hence, I am answering the first substantial question of law in the above terms and against the first respondent herein. 24.Now, coming to the second substantial question of law i.e., readiness and willingness on the part of the plaintiff is concerned, it is true that readiness and willingness is a mixed question of fact and law and normally this court would not interfere with the findings of both the Courts below with respect to the readiness and willingness of the plaintiff on the basis of the evidence adduced before the trial court. However, in the present case, a perusal of the judgment of the trial court would make it very clear that the trial court has not even framed a specific issue with regard to the plaintiff's readiness and willingness to perform her part of the contract. In fact, the trial Judge has curiously passed the judgment and decree without elaborately discussing the matter with the evidence adduced before him. The lower appellate court was aware of the same and that is why, in the judgment dated 29.09.2006 at para 17, it stated that the trial court has framed only one issue and on the basis of the single issue, the trial court proceeded to pronounce the judgment. Therefore, the Lower Appellate Court framed five issues and issue No.4 is whether the plaintiff is ready and willing to perform her part of the contract. While answering this issue, the lower appellate court held that the plaintiff proved that she was ready and willing to perform her part of the contract without discussing or without stating as to how the plaintiff proved her readiness and willingness. Further, the lower appellate court has observed that there is no contra evidence on the part of the third defendant herein in this regard. The lower appellate Court while https://hcservices.ecourts.gov.in/hcservices/ answering this issue in favour of the plaintiff, held that in the absence of substantial proof on the part of the third defendant, it cannot be heard to say that the plaintiff was not ready and willing to perform her part of the contract. 25.This reasoning given by the lower appellate court is absolutely wrong and unwarranted as in a specific performance suit, it is the plaintiff who has to prove that the plaintiff is always ready and willing to perform his/her part of the contract, on the contrary, the lower appellate court shifted the burden and the onus of disproving the same on the third defendant, which in my opinion, is absolutely unwarranted and contrary to law. Therefore, on that basis of the findings of the lower appellate court, the issue of readiness and willingness could not be decided in favour of the plaintiff. In such circumstances, this Court permits both the parties to advance arguments on the second substantial question of law viz., whether the plaintiff was always ready and willing to perform her part of the contract? 26.Admittedly, the sale agrement (Ex.A1) was executed on 20.06.1994. According to Ex.A1, eight months time was given for the payment of the balance sale consideration of Rs.1 lakh and to get the sale deed executed. In fact, a specific date i.e., 20.02.1996 has been mentioned thereon and on or before which date, the sale deed has to be executed after payment of the balance sale consideration. However, the plaintiff sent a notice on 07.05.1997 only. Before that, both V.S.Rajamanickam and Sanjeeva Chetty passed away. The only reason given in the notice for the delay is that V.S.Arumugam who did not sign the sale agreement, could not be persuaded by Sanjeeva Chetty to execute the sale agreement. This itself is fallacious and unbelievable as V.S.Arumugam did not sign the agreement, which fact was admitted by the plaintiff. Therefore he should be only persuaded to join others to execute the sale deed only and not the sale agreement. Excepting this reason no other reason has been given by the plaintiff, though it is stated that she is ready with the balance sale consideration of Rs.1 lakh. Further, the other reason given by the plaintiff that the right of the legal heir of the deceased to share the amount was disputed by others is also not acceptable and convincing. What she has been doing from 1994 to 06.05.1997 has not at all been explained and therefore, this evidence is not at all sufficient to prove her readiness and willingness. It is true that averments with regard to readiness and willingness are there in the plaint, but, they are alone not sufficient in the absence of any other supporting evidence. In such circumstances, it is to be held that the plaintiff to get the specific relief of enforcing the sale agreement dated 20.06.1994 has failed to discharge the onus of proving her readiness and willingness to perform her part of the contract. 27.In 2002 (9) SCC 582 (cited supra), the Hon'ble Supreme Court https://hcservices.ecourts.gov.in/hcservices/ held as follows: "5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authorities on the 31st March, 1982, the present suit was filed in April 1982, and the other the tendering of a further sum of Rs.5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to Para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part under the contract. So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." 28.In 2008 (5) CTC 428 (cited supra), a learned Judge of this Court held as follows: "12.In Parakunnan Veetil Joseph's Son Mathew v. Nedubara Kuruvila's Son, AIR 1987 SC 2328, the Supreme Court has cautioned and observed as under: ".... 14.Section 20 of the Specific Relief Act, 1963. preservees judicial discretion to Courts as to decreeing specific performance. The Court should meticolously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely becaue it is lawful to do so. The motive behind the litigation should also enter in the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the Plaintiff." 13.In Gobind Ram v. Gian Chand, 2000 (7) SCC 548:AIr 2000 SC 3106, the Supreme Court has observed that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. The Court is guided by the principles of justice, equity https://hcservices.ecourts.gov.in/hcservices/ and good conscience. 29. The learned counsel for the appellant contended that there was no delay in filing the suit and even assuming that there was a delay in filing the suit in 1993, it cannot be a ground for refusing the relief of specific performance. In support of his contention, the learned counsel placed reliance upon Sha Peerchand vs. Jadandhyala Venkata Subramanya and others, 1994 (1) CCC (AP) 555. 30. It is true that mere delay without such conduct on the part of the plaintiff would cause prejudice does not empower the Court to grant a relief of specific performance. In Satyanarayana vs. Yelloji Rao, AIR 1965 SC 1405, the Hon'be Supreme Court has held as follows: "that mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief of specific performance. There it has also been held that proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff, to the relief of specific performance, for if abandonment or waiver must established, no question of discretion on the part of the Court would arise. It has been further held that it is not possible or desirable to lay down the circumstances under which the Court can exercise its discretion against the plaintiff. But, they must be such that the representation by, or, the conduct or neglect of, the plaintiff, is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." 31. As held by the Supreme Court readiness and willingness has to be determined from the facts and attendant circumstances of the case. In the present case, the suit was filed nearly after two years, thereby inducing the defendant to change his position. As held by the Supreme Court in K.S.Vidyanandam vs. Vairavan, 1997 (1) CTC 628 : 1997 (3) SCC 1: "the delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff." Taking note of the conduct of the plaintiff in not tendering the amount, Lower Appellate Court rightly held that the delay in filing the suit would disentitle to get the discretionary relief of specific performance." 29.In 2011 (!) SCC 429 (cited supra), the Hon'ble Supreme Court https://hcservices.ecourts.gov.in/hcservices/ held as follows: "20.Section 16(c) of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that 16.Personal bars to relief:- Specific performance of a contract cannot be enforced in favour of a person, a) who would not be entitled to recover compensation for its breach;