IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.231 of 2007 1. V.Sathya Narayana, S/o V.Guruswamy 2. Mrs.Seetha Mahalakshmi, W/o Sathya Narayana .. Appellants/Plaintiffs Vs. 1. Menaka @ Dillibai, W/o Mohan 2. Mohan, S/o Natrajan 3. N.Sivakumar, S/o Natarajan 4. Smt.Prema, W/o Dakshanamoorthy 5. Smt.Lalitha, W/o Radhakrishnan .. Respondents/Defendants Appeal Suit against the judgment and decree dated 27.10.2006 in O.S.No.238 of 2006 on the file of II Additional Judge, City Civil Court, Chennai. For appellants : Mrs.S.Shyamala For respondents: Notice served JUDGMENT Appeal Suit (First Appeal) is filed against the judgment and decree dated 27.10.2006 in O.S.No.238 of 2006 on the file of II Additional Judge, City Civil Court, Madras. 2. The averments in the plaint are as follows: (a) The suit house property belongs to one V.Arumugha Naicker, who purchased the same under the Registered Sale Deed, dated 7.5.1954. He enjoyed the entire property measuring 3 grounds and 293-1/2 Sq.Ft. along with the constructed house. He died intestate leaving behind D1-Menaka @ Dillibai, as his only surviving daughter to inherit the suit property. D1 enjoyed the entire property as a single unit and is in exclusive possession of the property till date. (b) On 21.1.2004, the plaintiff entered into an agreement of sale with D1 and D2, the husband of D1, in respect of the vacant house site measuring 1200 Sq.Ft. out of the suit property for Rs.9,60,000/- and a sum of Rs.2 lakhs was paid as advance by the plaintiff in favour of D1 and D2, by Demand Draft, dated https://hcservices.ecourts.gov.in/hcservices/ 21.1.2004. Thereafter, D1 and D2 received Rs.1 lakh as a part payment of the sale consideration. (c) When the process of executing the sale deed was pending, D3 to D5 filed O.S.No.3249 of 2004, for permanent injunction against D1 and D2. The plaintiffs herein were impleaded as D3 and D4 in that suit and the plaintiffs filed written statement and during the pendency of the trial in O.S.No.3249 of 2004, the defendants entered into the memorandum of compromise at the back of the plaintiffs herein, without any prior notice. Based on the above compromise, the said suit in O.S.No.3249 of 2004 was decreed by dividing the entire suit property into two equal shares; half of the share in the suit property was allotted to D1 herein and the other remaining share shall be divided into four equal shares by D2 to D5 herein. Even in the above said memorandum of compromise, the plaintiffs herein were given liberty to work out their remedy, after the partition, as per the compromise decree. (d) The plaintiffs herein came to understand that the defendants herein in collusion and with an ill-motive, were planning to dispose of the entire suit property to third parties. Hence, the plaintiffs have no other option except to file the present suit for specific performance to direct the defendants to execute the sale deed in favour of the plaintiffs pursuant to the agreement of sale dated 21.1.2004, after receiving the balance sale consideration, and on the defendants failing to do so, the Court shall execute the same and award costs and accordingly the plaintiffs prayed for a decree. 3. The sum and substance of the written statement filed by D1 to D4 are as follows: (a) D1-Menaka @ Dillibai is the only surviving daughter of the deceased Arumugha Naicker, and her husband is D2-Mohan. D2- Mohan, D3-Sivakumar, D4 Prema and D5-Lalitha are own brothers/sisters and they are the sons/daughters of late Lakshmi Ammal. The said Lakshmi Ammal and Arumugha Naicker are the daughter and son, respectively of Late Vaira Murthi Naicker, who had agricultural lands in a large extent and out of the income from the agricultural lands, the suit property was purchased in the name of Arumugha Naicker, son of Vaira Murthi. After the demise of Vaira Murthi, the agricultural lands were sold out of the joint family funds and two rows of houses were constructed in the suit land by Arumugha Naicker, the father of D1 and Lakshmi Ammal, the mother of D2 to D5. Between the said two rows of houses, there was a vacant land used as a common passage and to avoid, the half share of Arumugha Naicker, is taken away by the non-family members. (b) Arumugha Naicker had given in marriage, his daughter Menaka alias Dillibai (D1) to his sister Lakshmi Ammal's second son Mohan (D2). Arumugha Naicker died on 15.3.2001 and his wife Saroja pre-deceased him. D3 to D5 are residing in one side and D1 and D2 are residing in another wing in the suit property. (c) D1 is the character of mental retardation and D2 is a https://hcservices.ecourts.gov.in/hcservices/ drunkard. D2 borrowed Rs.2 lakhs from the plaintiffs and for that, the plaintiffs obtained an agreement of sale of 1200 Sq.Ft. as security. Instead of obtaining promissory note, they obtained an agreement of sale. No boundary has been mentioned for 1200 Sq.Ft. and it will clearly show that the said agreement is intended only as a security for the repayment of the loan amount and not an agreement of sale. (d) Meanwhile, D3 to D5 filed the suit for a partition and injunction against D1 and D2 in O.S.No.3249 of 2004 on the file of VII Additional Judge, City Civil Court, Chennai. The plaintiffs herein, on behalf of D1 and D2 filed the written statement according to the advise of the plaintiffs herein. By consent, compromise entered between the defendants herein and a preliminary decree was passed on 8.8.2005 in O.S.No.3249 of 2004, granting 4/8 share in the suit property to D1 and allotted 1/8 share to D2 to D5. (e) The suit for specific performance is not maintainable. Since the sale agreement was not signed by D2, it was executed only for the security for the re-payment of loan amount of Rs.2 lakhs. D1 is mentally retarded person and D2 is a drunkard and hence, there is no valid consent. (f) The description of the property has not been properly mentioned. The plaintiffs are the strangers to the suit property. No portion of the suit property should be given to third parties, as the defendants 3 to 5 are ready to pay whatever amount due and payable by D1 and D2 to plaintiffs. (g) The sale price fixed is very low. There is no cause of action for the filing of the suit. They prayed for dismissal of the suit. 4. The gist and essence of the written statement filed by D5 are as follows: (a) The property was purchased in the name of Arumugha Naicker out of the sale proceeds of the ancestral property. The sale agreement is void, illegal and void-ab-initio and could not be enforced against the defendants, because, the sale was in respect of the undivided portion of 1200 Sq.Ft. out of larger extent of the suit property and all the defendants herein have a right, interest and share over each particle of the suit property. (b) D1-Menaka @ Dillibai, is a mentally retarded person and she lacks competency to enter into a sale agreement of the property. D2 – Mohan, is an addict to alcohol and other intoxicated substance. Taking advantage of the same, the plaintiffs used to give him money whenever he demanded the same for the purchase of liquor. Hence, the sale agreement is not binding on the defendants and it is not enforceable. The sale agreement is fraudulent and it is an illegal agreement and D5-Lalitha was not aware of the sale agreement. The suit for partition in O.S.No.3249 of 2004, was filed by D3 to D5 herein and a preliminary decree has been passed on 8.8.2005. By way of counter-claim, the plaintiffs herein have filed https://hcservices.ecourts.gov.in/hcservices/ the present suit and D5 prayed for dismissal of the suit. 5. The trial Court, after considering the averments both in the plaint and in the written statement, and considering the arguments of both sides, framed three points for consideration and on a perusal of the oral evidence of P.Ws.1 to 4 and D.Ws.1 to 5 and documentary evidence in Exs.A-1 to A-12 and Ex.B-1, dismissed the suit, against which, the present First Appeal has been filed by the plaintiffs. 6. Upon hearing the arguments of the learned counsel for the appellants/plaintiffs, and though notice was served on the respondents/defendants, they neither appeared in person or through counsel, the following points arise for consideration:- (i) Whether the trial Court is correct in holding that the appellants/plaintiffs were not ready and willing to perform their part of the contract ? (ii) Whether the judgment and decree of the trial Court, are sustainable ? and (iii) To what other reliefs the appellants/plaintiffs are entitled to ? 7. Point (i): The appellants as plaintiffs filed the suit for specific performance on the basis of Ex.A-1 sale agreement, dated 21.1.2004. The respondents/defendants raised a plea that mental equilibrium of first respondent/D1 is questionable and the second respondent/D2 is a drunkard and so, the defendants paid the amount and obtained the signature in the sale agreement and they disputed only the genuineness of Ex.A-1 sale agreement. The trial Court has considered the oral and documentary evidence and observed that Ex.A-1 is a sale agreement and it is a true and genuine document and not a fabricated one. But however, the trial Court has dismissed the suit, stating that the appellants/plaintiffs were not always ready and willing to perform their part of the contract and the appellants/plaintiffs never averred and proved that they were always ready and willing to perform their part of the contract. 8. It is pertinent to note that though the respondents/defendants were served notice, they neither appeared in person nor engaged any counsel to put forth their case. 9. Heard the learned counsel appearing for the appellants/plaintiffs and perused the materials available on record. 10. The admitted facts are as follows: The suit property was originally purchased by one Arumugha Naicker. The suit property contains 3 grounds and 293-1/2 Sq.Ft. The first respondent/D1/Menaka @ Dillibai is the daughter of https://hcservices.ecourts.gov.in/hcservices/ Arumugha Naicker, who died intestate leaving behind D1 as his sole heir. Both the appellants/plaintiffs and first respondent/D1 entered into sale agreement Ex.A-1 on 21.1.2004. 11. The respondents/defendants earlier filed a suit in O.S.No.3249 of 2004 for partition and separate possession of the share in the property. The appellants/plaintiffs were impleaded as D3 and D4 in the said suit. Admittedly, the suit ended in compromise decree and the judgment and decree in O.S.No.3249 of 2004 is marked as Ex.A-3 along with the joint memorandum of compromise. In the said suit, compromise had been recorded by the Court and preliminary decree had been passed in terms of the compromise. One of the terms of compromise in O.S.No.3249 of 2004, as enclosed in Ex.A-3, reads as follows: "1. The 3rd and 4th Defendants entered into an agreement with the 1st and 2nd Defendant on 21.01.2004 for sale of 1200 square feet from and out of the undivided suit property having an extent of 7200 square feet nearly and they have been made as defendant to the suit only by way of abundant caution and no relief was claimed against them. They may work out their remedy after the partition was made as per decree herein after to be in the suit and hence the suit as against the 3rd and 4th defendants are hereby withdrawn as not pressed." So, the said suit in O.S.No.3249 of 2004 against the present appellants/plaintiffs (D3 and D4 therein) was dismissed as not pressed and half share had been given to the first respondent/D1 and hence, the appellants/plaintiffs have preferred the present suit for specific performance. 12. Even though the respondents/defendants raised a plea in the written statement that Ex.A-1 sale agreement is a fabricated one, but while considering the oral and documentary evidence, the trial Court came to the correct conclusion that Ex.A-1 is a true and genuine document. Even though the respondents/defendants have been served, and none appeared, it is implied that they are not questioning the validity of the findings of the trial Court. So, this Court concurs with the finding of the trial Court that Ex.A-1 is a sale agreement, and the same is true and genuine. 13. The trial Court dismissed the suit only on the ground that the appellants/plaintiffs were not ready and willing to perform their part of the contract, since they have not averred the same in the plaint. 14. At this juncture, it is appropriate to incorporate Section 16 of the Specific Relief Act, as follows: "Section 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; or (b) who has become incapable of performing, or violates any https://hcservices.ecourts.gov.in/hcservices/ essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation: For the purpose of clause (c)-- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 15. Section 16 of the Specific Relief Act deals with as to what are the obligations the appellants/plaintiffs has to comply with reference to the plea and whether the plea of the appellants/plaintiffs could not be construed to confirm all the requirements of the above said Section 16, or does this Section require specific performance words that the appellants/plaintiffs have to perform or has always been ready and willing to perform their part of the contract. 16. Learned counsel for the appellants/plaintiffs relied on a decision of the Supreme Court, reported in 1999 (6) SCC 337 (Syed Dastagir Vs. T.R.Gopalakrishna Setty), wherein, it was observed by the Apex Court in paragraph 9 as follows: "9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be https://hcservices.ecourts.gov.in/hcservices/ in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed 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 insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded." 17. Now, It is appropriate to consider the following decisions: (i) 2008 (4) SCC 212 (Ramakrishna Pillai Vs. Muhammed Kunju): "10. There can be no quarrel with the position in law urged by learned counsel for the respondent about the parameters to be considered while dealing with a suit for specific performance. But the High Court's judgment is clearly vulnerable. Firstly, there was no dispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfil their obligations. The High Court was clearly in error in holding that no plea regarding readiness and willingness was raised. As noted above, the trial court in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and are always willing to fulfil their part of the obligations. The High Court also failed to notice that there was no plea either the written statement or in the cross- objections filed in the appeal before the High Court that the plaintiffs were not ready and willing to fulfil their part of the obligation. 11. The conclusions of the High Court are to the following effect: "Then the question is whether the respective plaintiffs have pleaded and proved that they were always ready and willing to perform their part of the contracts. Even though time did not start to run on the expiry of two months from the dates of the agreements, certainly, the plaintiffs were aware that the defendants had to discharge their obligation and get a release of the mortgage in two months of the dates of the agreements. Until the sending of the notices preceding the suits, there is nothing to show that the plaintiffs at any time called upon the defendants to perform their part of the contract." 12. The conclusions are clearly contrary to the pleadings of the plaintiffs. It was categorically stated in the plaint in https://hcservices.ecourts.gov.in/hcservices/ both the suits that the plaintiffs are always ready and willing to fulfil their part of the obligations and that defendants were evading the execution for one reason or the other." (ii) 2010(6) CTC 901(SC)=MANU/SC/0977/2010 (M/s.J.P. Builders and another Vs. A.Ramadas Rao and another): "9. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness." 10. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao & amp; Ors., (1995) 5 SCC 115 at para 5, this Court held: "..... Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract." 11. In P.D'Souza Vs. Shondrilo Naidu MANU/SC/0561/2004 : (2004) 6 SCC 649, paras 19 and 21, this Court observed: "It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait-jacket formula can be laid down in this behalf.... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did https://hcservices.ecourts.gov.in/hcservices/ everything which was required of him to be done in terms of the agreement for sale." 12. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It has been rightly considered by this Court in R.C.Chandiok and Anr. v. Chuni Lal Sabharwal and Ors., MANU/SC/0033/1970 : (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." 18. From the abovesaid judgments of the Supreme Court, it is clear that the appellants/plaintiffs must aver and prove that they were and are ready and willing to perform their part of the contract. 19. While applying the said decision of the Supreme Court in 1999 (6) SCC 337 (cited supra) to the present case, along with the pleadings in the plaint, it is to be noted that the appellants/plaintiffs never mentioned that they were ready and willing to perform his part of the contract. In paragraphs 10 and 11 of the plaint, it was mentioned by the plaintiffs as follows: "10. The plaintiffs came to understand that the Defendants herein in collusion, and with an ill motive against the plaintiffs herein, were planning to dispose the entire suit property to some third parties whose