`IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24-10-2008 CORAM: THE HON'BLE MR.JUSTICE K.KANNAN A.S.NO.1391 OF 1994 AND Tr.A.S.No.473 of 1996 1.Chokkammal 2.Ravikumar 3.G.Varadarajan 4.G.Venkatesan ...Appellants in both A,.S. and Tr.A.S. (Defendants 2 to 5 in O.S.NO.44/1993) (Plaintiffs 2 to 5 in O.S.No.280/93) Vs. K.Balraj ...Respondent in both A.S. and Tr.A.S. (Plaintiff in O.S.No.44/93) (Defendant in O.S.NO.280/93) First appeal and Transfer Appeal filed U/Sec 96 r/w or 41 Rule 1 CPC against the judgment and decree of the Additional Subordinate Judge, Chengalapttu dated 29.7.1994 passed in O.S.No.44 of 1993 and O.S.No.280 of 1993. For Appellants : Mr.T.V.Krishnamachari For Respondent : Mr.V.Selvaraj for M/s R.N.Amarnath J U D G M E N T I Nature of suits in appeals: The appeals are against the common judgment rendered on 29.7.1994 in O.S.Nos.44 of 1993 and 280 of 1993. The former suit viz., O.S.No.44 of 1993 was for specific performance of agreement of sale, admittedly executed by the first defendant in favour of the plaintiff for a consideration of Rs. 44,000/- on 13.9.1992. The second defendant is the wife of the first defendant and defendants 3 to 5 are their sons. The first defendant has filed his own suit in O.S.NO.280 of 1993 for a declaration that the agreement of sale has been rescinded, and for recovery of possession of the property with past damages. The Court below decreed the suit as prayed for https://hcservices.ecourts.gov.in/hcservices/ and dismissed the defendants' suit. The defendants in O.S.No.44 of 1993 are the appellants. II The contention of the plaintiff: 2. The contention of the plaintiff in the suit is that the first defendant entered into an agreement of sale in favour of the plaintiff on13.9.1992 and on the same date, Rs.20,000/- had been paid as advance. The balance of Rs.24,000/- was payable in three months. The document had been signed by the first defendant as well as the second defendant. The plaintiff's contention was that he has been ready and willing to pay the balance amount and secure the sale deed to perform his contract . The draft sale deed had been drawn up on stamp papers on 3.12.1992 and on that day, the balance amount had also been paid. All the defendants viz. the sons of the original party to Ex.A1 had also joned on the execution of the document. The plaintiff seeks for enforcement of the agreement on such terms. III The defence in suit for specific performance and reason for defendants' own suit for rescission: 3. The defendants' contention is that the plaintiff was not ready and willing to pay the amount and the subsequent document dated 3.12.1992 was not true. The plaintiff had trespassed into the property by force and ejected the tenant from the property. According to him, the plaintiff was not willing to pay the balance of Rs.24,000/- within the time stipulated and committed breach of contract. Having failed to pay the balance of consideration, the plaintiff brought some men and entered upon the property forcibly evicting his tenant Krishnan and occupied the property in the first week of December, 1992. A panchayat was convened on 13.12.1992 and a fresh consideration was negotiated for Rs.1 lakh. At that time, the signatures of the defendants had been taken on several stamp papers after paying additional sum of Rs.20,000/-. Even the balance of Rs.60,000/- which was agreed to pay was not given but the plaintiff had entered upon the property unlawfully. The suit was therefore filed terminating the earlier agreement dated 13.9.1992 and for recovery of possession of property. IV Disposition in the Court below: 4. The trial court on a joint trial found that the agreement was true. It also found that the subsequent document which was executed on 3.12.1992 was also true and the sale consideration having been paid, the plaintiff is entitled to a decree for specific performance. The Court rejected the contention of trespass and decreed the plaintiff's suit and dismissed the defendants suit. https://hcservices.ecourts.gov.in/hcservices/ V Factors against the relierf – Appellants arguments: 5. Before me, it is contended by the learned counsel for the appellants that the plaintiff had no consistent case. If the agreement dated 13.9.1992 had been superseded by the draft sale deed and it was drawn up on 3.12.1992, the plaintiff could not have sought for enforcement of the first document, since there had been a novation. The other contention is that the plaintiff had forcibly taken possession of the property, even when the agreement did not stipulate the handing over of possession. The possession was not handed over under the document and his subsequent entry was clearly without permission. If Ex.A13 were to be taken, as a starting point for taking into possession, it gave out an entry date which had no bearing to the contention of the plaintiff that he took possession of the property fifteen days after the first agreement. The plaintiff had not come to Court with clean hands and the relief of specific performance being discretionary, ought not to be extended in favour of the plaintiff. VI Appraisal of the relative merits: 6. Although the learned counsel for the appelalnts initially argued that Ex.A3 which was an unregistered document, should have alone been the cause of action and the plaintiff ought to have taken steps to have the document compulsorily registered, if the document was to be true, but later, he conceded that unregistered sale deed dated 3.12.1992 which the plaintiff characterizes as a draft sale deed could afford evidence of existence of the agreement and it could be the basis for specific performance. The counsel for appellants would however submit that if the unregistered sale deed would be the basis for enforcement, then the suit ought to have been for specific performance of the unregistered sale deed dated 3.12.1992 and the earlier document dated 13.9.1992, would not provide the cause of action. As regards the enforceability of the plaintiff's document, it has to be seen that document dated 13.9.1992 is an admitted one. The subsequent document dated 3.12.1992 has been denied by the defendants, but it bears out that it contains the signatures of all the defendants. The defendants are not illiterates and it is inconceivable that they have not signed the document in blank papers, especially when the transaction is said to have taken place on 3.12.1992, when panchayatdars interceded to re-negotiate for a higher price. 7. As a measure of sound reasoning, it could be stated that the persons of full age and understanding who subscribe their signatures to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In this case, there is https://hcservices.ecourts.gov.in/hcservices/ nothing to suspect that the document could have been brought about under vitiating circumstances. The trial Court has found that on a wholesale consideration of evidence that Ex.A3 was true and it has also considered the evidence of witnesses to the transaction viz. the scribe under Ex.A1 and also one of the witnesses Chellappa, who is PW2. The said Chellappa is the witness in Ex.A3. I therefore confirm the finding recorded by the trial Court that Ex.A1 and A3 are true and the defendants have obligated themselves under this document to execute the sale in favour of the plaintiff. 8. The crucial point for consideration in a suit for specific performance is readiness and willingness to pay the consideration. It is seen from Ex.A1 that Rs.20,000/- had been paid on 13.9.1992 and the balance of Rs.24,000/- alone was payable within a period of three months. The balance also is admitted to have been paid to the defendants. This admission by the defendants come in the shape of recital in EX.A3. The defendants' contention is that they received only Rs.20,000/- on 3.12.1992 and Rs.24,000/- had not been paid. I have already found that EX.A3 is genuine document and learned counsel for the respondent pointed out that the defendants cannot lead parole evidence to substitute the consideration found under the document. If the consideration as recited in the document Ex.A3 refers to Rs.44,000/-, the defendants are barred by Section 92 of the Evidence Act to contend that the consideration was Rs.1 lakh and that the payment of only Rs.20,000/- was made on the date when their signatures were obtained on 3.12.1992. Having regard to the fact that the entire sale consideration had been paid even on the date of institution of suit, I find that the plaintiff has proved his readiness and willingness also. 9. The other question that remains to be seen is whether the plaintiff has conducted himself in such a fashion which is at variance with truth and therefore the plaintiff has dis-entitled himself to the discretionary relief of specific performance. The entry into possession of property is said to be unlawful and therefore the relief could not be granted. Although, there is no recital under EX.A1 for delivery of possession of property, it is an admitted fact that the property has been taken possession by he plaintiff. The plaintiff would state that it was given voluntarily, while the defendants would contend that it was forcibly occupied. The date of actual taking of possession itself is not relevant for, after all if the document Ex.A3 is true, It bears a recital in the document that the property has been delivered possession to the plaintiff. We have already seen that the entire sale consideration has also been paid. A vendor who had received the entire sale consideration is obliged to handover possession of the property to the purchaser and give warranty for occupation free of disturbances. It is not possible to attribute any grave misconduct https://hcservices.ecourts.gov.in/hcservices/ on the part of the plaintiff, especially in a case where the entire sale consideration has been paid, to deny to him the relief of specific performance. On the other hand, it would be inequitable to deny such a relief in view of Section 10 of Specific Relief Act, which states that in respect of immovable property, the breach on the part of the vendor cannot be compensated only by money and specific performance of the agreement alone is the adequate remedy. VII Conclusion: 10. In the circumstances, I do not find any merits in both the appeals. The decrees of the court below in O.S.NOS.44 of 1993 and O.S.No.280 of 1993 on the file of the Additional Sub Judge,Chengalpattu is confirmed and the appeals are dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. VJY To 1. The Additional Sub Judge, Chengalpattu. 2. The Section Officer VR Section, High Court, Chennai-104 1 cc to Mr.T.V. Krishnamachari, Advocate, SR. 59663 A.S.NO.1391 OF 1994 AND Tr.A.S.No.473 of 1996 GV (CO) kk 22/1 https://hcservices.ecourts.gov.in/hcservices/