IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07..10.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.932 of 1991 Vasantha Ammal .. Appellant/Plaintiff vs. 1. Babu Chettiar (died) 2. Krishnaveni Ammal (died) 3. P.Manicka Vasagam (Died) 4. A.Ramalingam (Died) 5. Esther 6. M.Edwin 7. M.Prabhu 8. Padma 9. R.Sekar R4 impleaded as party respondent vide order of Court dated 12.01.1994 made in C.M.P.No.11919 of 1994 RR5 to 7 brought on record as LRs of the deceased third respondent vide order of Court dated 24.03.2007 made in C.M.P. Nos.10908 to 10910 of 2006. RR8 and 9 brought on record as LRs of the deceased 4th respondent vide order of Court dated 11.04.2007 made in C.M.P.Nos. 175 to 177 of 2007 10. J.Mohan 11. J.Murali 12. J.Kothandaraman 13. J.Santhanam 14. D.Rani 15. L.Sekar 16. L.Sivakumar 17. K.Rani 18. M.Sudaamani 19. R.Lakshmi 20. R.Suresh Kumar 21. R.Gopinath https://hcservices.ecourts.gov.in/hcservices/ 22. V.Hari Babu 23. V.Dhanapal 24. V.Vasudevan 25. V.Vijayakumar 26. B.Kasthuri 27. V.Vijayalakshmi 28. N.Vasanthi 29. V.Geetha 30. M.Chamundeswari 31. T.Thulasi 32. K.S.Sekar 33. S.Sreenivasan 34. K.Radha Bai 35. A.Rukmani 36. G.Hemalatha 37. D.Balakrishnan .. Respondents/LRs of the Defendants & Party Respondents RR 10 to 37 impleaded as party respondents vide order of Court dated 11.08.2008 made in C.M.P.No.1152 of 2006. Appeal preferred against the judgment and decree dated 02.08.1992 passed in O.S.No.20 of 1982 by the learned I Additional Subordinate Judge, Chengalpattu. For Appellant : Mr.P.Gopalan For Respondents : Mr.Seshadri For RR9 & 10 : Mr.V.Bhiman JUDGMENT Anim adverting upon the judgement and decree dated 02.08.1992 in O.S.No.20 of 1982, which is one for specific performance, dismissed by the learned I Additional Subordinate Court, this appeal is focussed. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court. 2. The whole kit and caboodle of facts and figures placed before the trial court warrants this Court to scan and scrutinize the records and infer and understand the case of both sides for being quintessentially and briefly portrayed the germane facts thus: Niggard and bereft of details, the case of the plaintiffs would be as under: https://hcservices.ecourts.gov.in/hcservices/ a) The suit properties, viz., a house and nanja lands belonged to the defendants 1 and 2. The plaintiff and the defendants entered into an agreement to sell on 09.07.1979 whereby the latter agreed to sell the same in favour of the former for a total sale consideration of Rs.41,000/- and out of it, a sum of Rs.24,500/- was paid by the proposed purchaser in favour of the owners of the properties as advance and the remaining was undertaken by her to be paid to the other side on or before 11.10.1979, intending that time should be the essence of contract. b) Despite the plaintiff having been ready and willing to perform her part of the contract by paying the remaining part of the sale consideration and getting executed in her favour, the sale nonetheless, the defendants had an volte face and procrastinated their performance. However, the said owners all of a sudden sold the agricultural items of the suit properties in favour of D3, even though the fact remains that the plaintiff under the said agreement to sell had been put in possession of the house property and consequently, she and her family members have been residing there, in addition to the landed properties also having been put in possession of the plaintiff and she having raised crops. Nevertheless, the third defendant was attempting to take forcibly and illegally the possession of the suit property. c) The plaintiff's lawyer's notice dated 02.02.1982 to defendants 1 to 3 evoked no positive response from them, but to the shock and surprise of the plaintiff, defendants 1 and 2 sent reply denying in toto the very execution of the agreement to sell itself. D3 also sent a similar reply, in addition to claiming that he was the bona fide purchaser of the landed properties. D3 is not a bona fide purchaser, without having knowledge about the pre-existing suit agreement to sell. d) Hence, the suit for specific performance. 3. Remonstrating and denying, gainsaying and impugning the allegations/averments in the plaint, D1 filed the written statement, which was adopted by D2, the gist and kernel of them would run thus: a) The suit agreement to sell was not executed by the defendants 1 and 2. One K.N.Subramanian approached the defendants 1 and 2 during April 1979 and evinced and expressed his desire to purchase the suit properties; after due negotiations the house property and 2 acres and 54 cents of land alone were agreed to be sold; whereupon at the request of the said Subramanian, the agreement to sell emerged on 19.04.1979 in the name of one Muthusamy Iyer and D1 and D2, Muthusamy Iyer did not approach the defendants personally stipulating three months' period as the time for performance, apparently indicating that the time was the essence of the contract. Under the said agreement to sell, a sum of Rs.20,000/- was paid as advance by Subramaniam in favour of D1 and D2 and he undertook to pay the balance, at the time of registration of the sale deed. https://hcservices.ecourts.gov.in/hcservices/ b) However, when the time stipulated therein was about to expire, the said Subramaniam approached the defendants on 09.07.1979 and requested for extending the time for performance by three more months for which, the defendants 1 and 2 were not willing. Whereupon the said Subramaniam paid a sum of Rs.4,500/- and requested defendants 1 and 2 to execute another agreement to sell and as a token of it, the said Subramaniam got the signatures of D1 and D2 on stamp papers and it was agreed between them that on or before 09.10.1979, the sale deed should be got executed from the defendants, after payment of the remaining sale consideration. As such, there was no privity of contract between the plaintiff and the defendants 1 and 2. The possession of the suit properties was not handed over either to the plaintiff or to Subramaniam. Subsequently, no steps were taken by Subramaniam to get the sale deed executed by D1 and D2. c) At no point of time, the plaintiff approached the defendants 1 and 2 for getting the sale executed by them after paying the remaining sale consideration. In fact, Subramaniam himself expressed his inability to get the transaction completed and thereupon, he abandoned his right under the said agreement. It is the said Subramaniam, who instigated the plaintiff to file the suit. d) The agricultural land are in occupation of the tenants of D1 and D2 and they are cultivating it, after executing muchalikas in favour of D1 and D2 and they were paying rents to D1 and D2. In respect of the house property, an agreement to sell emerged between D1 and D3 on 14.12.1981. D3 by way of part performance was put in possession of the suit house. However, the plaintiffs and her sons illegally trespassed and occupied the verandah of the suit house. Accordingly, they prayed for the dismissal of the suit. 4. The warp and woof of the averments in the written statement filed by D3 would run thus: D3 purchased the items 1 to 8 landed properties from D1 and D2 as per the registered sale deed dated 14.12.1981 and he was put in possession of the same and the tenants under D1 and D2 relating to the landed properties attorned the tenancy in favour of D3. The plaintiff is not in possession of the landed properties. Under the agreement to sell in respect of the suit house properties, D3 was put in possession by way of part performance by D1 and D2. After filing of the suit, the said agreement to sell relating to the house was cancelled, at the instance of D3. Accordingly, he prayed for dismissal of the suit. 5. The trial Court framed the relevant issues. During the trial, the plaintiff examined herself as P.W1 along with P.Ws.2 to 4 and Exs.A1 to A8 were marked. On the side of the defendants' DW1 was examined along with D.Ws.2 to 4 and Exs.B1 to B42 were marked. https://hcservices.ecourts.gov.in/hcservices/ 6. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiff has filed this appeal on the following grounds among others, the warp and woof of them would run thus: (i) Ignoring the clinching evidence available in favour of the plaintiff, the trial Court dismissed the suit. (ii) The trial Court failed to hold that the plaintiff was in possession of the suit properties pursuant to the agreement to sell. (iii) The trial Judge wrongly construed Ex.A5 and Ex.A6. (iv) If really, the plaintiff was not in possession of the suit properties, the defendants would have denied her possession over the suit properties in their notice. (v) The preponderance of probabilities would warrant to infer that after paying a huge sum of Rs.24,500/-, the plaintiff would have taken possession of the suit properties but it was not considered by the trial Court. (vi) The admission made by DW1 was ignored and DW1 could not furnish any particulars about the details of possession by D.Ws. 2 and 3, but the trial Court failed to note it. (vii) The deposition of DW2 relating to Muchalika was not properly construed by the trial Court. (viii) The trial Court failed to note that no evidence was adduced by the defendants relating to the alleged trespass made by the plaintiff. (x) The trial Court failed to hold that D3 was not the bona fide purchaser of the suit properties 1 to 8. (xi) DW4's (D3) evidence was not properly considered by the trial Court. (xii) The trial Court did not consider the admission made by DW4 (D3) in deciding the case. Accordingly, she prayed for setting aside the judgment and decree of the trial Court and for decreeing the suit. 7. The points for consideration are as to :- (1) Whether the suit agreement to sell Ex.A1 emerged between the plaintiff and D1 and D2 intending the plaintiff as the proposed purchaser and if so, whether the plaintiff was put in possession of the suit properties by way of part performance? https://hcservices.ecourts.gov.in/hcservices/ (2) Whether the plaintiff was ready and willing to perform her part of the contract or whether the defendants 1 and 2 committed breach of contract and sold the properties in item Nos. 1 to 8 in favour of D3 illegally? (3) Whether D3 is a bona fide purchaser without notice of the suit agreement? (4) Whether there is any infirmity in the judgment and decree of the trial Court? 8. Heard both sides. 9. Discussion on the facts and events emerged during the pendency of the appellate proceedings: (i) Discussion relating to missing records: A 'resume' of facts and events which emerged during the pendency of the proceedings is absolutely necessary to be portrayed as under: 10. The plaintiff filed the suit for specific performance of the agreement to sell which was dismissed, whereupon, the plaintiff filed the necessary application seeking permission of this Court to file the appeal Informa Pauperis, but such a prayer was rejected, thereupon, LPA was filed and ultimately, the plaintiff was permitted to file the appeal Informa Pauperis. 11. Mr.Seshadri, the learned counsel for the respondents 10 to 37 herein and Mr.Gopalan, the learned counsel for the appellant/plaintiff would submit that pending LPA, it so happened that the trial court destroyed the records due to lapse of time. It appears, from the certified copies available the typed set of papers were prepared. From the endorsements found in the Court records, what I could understand is that this Court has sent communication to the lower Court to send the material records in O.S.No.20 of 1982, whereupon, the original plaint, written statements, fair judgement and decree were sent to this Court, but, the rest of the material papers including the documents have not been sent to this Court, as they were destroyed as per Rules. It is a well known procedure that if original records are not available, from the papers and materials available based on the concept "reconstruction of records", justice should be rendered. Hence, realising the situation, all the learned advocate appearing before me, have submitted their arguments as such referring to the available records as reconstructed ones. The certified copies of depositions of the witnesses have also been furnished to this Court for reference, by the plaintiff. (ii) Discussion on impleadment of legal representatives of deceased D1 and D2: 12. The learned counsel for the plaintiff Mr.Gopalan would submit that time was not the essence of contract, as Ex.A1 the agreement to sell dated 09.07.1979 is relating to immovable properties i.e. house property https://hcservices.ecourts.gov.in/hcservices/ and agricultural properties; even though the plaintiff was ready and willing to perform her part of the contract, nevertheless the deceased defendants 1 and 2 were not willing to perform their part of contract and they unilaterally sold the suit items 1 to 8-the agricultural lands to D3 even before filing of the suit, and thereby mangled Ex.A1,the agreement to sell; D3 is not a bona fide purchaser for value without notice of the agreement to sell; once sale was effected by D1 and D2 in favour of D3, the question of D1 and D2 pleading lack of readiness and willingness on the part of the plaintiff would not arise at all; the burden of proof is on D3 to establish that he was a bona fide purchaser for value without notice; and as such, the lower Court judgement has to be set aside and the suit for specific performance has to be decreed. 13. The gist and kernel of the argument of Mr.P.Seshadri, the learned counsel for the respondents 10 to 37 is that D1 and D2 died during the pendency of the proceedings, but no steps have been taken to implead their legal representatives; accordingly the appeal should be taken to have got abated within the meaning of Order 22 Rule 4 of the Code of Civil Procedure and no steps have also been taken to invoke Order 22 Rule 4(a) of the Code of Civil Procedure which contemplates the procedures when there is no legal representatives; and the respondents 10 to 37 are the legal representatives/legal heirs/and they are the beneficiaries under the Registered Will dated 9th September 1997 bequeathing the suit house. Merely because they voluntarily got themselves impleaded as R10 to R37, the appeal which automatically got abated would not be taken as one surviving as on date. 14. The learned counsel for the plaintiff would contend that the respondents 10 to 37 who have come on record are the legal heirs/legal representatives of the deceased D1 and D2 and in such a case, the question of abatement of the appeal would not arise and that earlier the plaintiff was unaware as to who were all the legal representatives/legal heirs of deceased D1 and D2. 15. The learned counsel for R10 to R37 would invite the attention of this Court to the deposition of P.W.1-the plaintiff and develop his argument that even during cross-examination the plaintiff admitted about the existence of the sister of D1. It is also a fact that D.W.1(D1) during his life time in the chief examination itself categorically deposed in his very second sentence that he was having three sisters. Even P.W.4 Subramanian, who apparently brought about the transaction was also aware of the L.R. of D1. It is therefore clear that the plaintiff herself could have taken steps to implead the LRs of D1 and D2 on the death of D1 and D2 had she taken diligent steps. But she has not done so. On the other hand D1 and D2's legal representatives/legal heirs, who are also beneficiaries as per the Will executed by D1 entered appearance vide order dated 11.8.2008 made in C.M.P.No.1152 of 2008. The plaintiff got it recorded by this Court that the Will dated 19.9.1997 as relied on by R10 to R37, was considered for allowing the application subject to proof of the same. https://hcservices.ecourts.gov.in/hcservices/ 16. During arguments, the learned counsel for R10 to R37 would convincingly submit that the plaintiff is only a 3rd party to the family of D1 and D2 and in such a case she cannot dispute the Will as per the settled proposition of law and in as such the registered Will could be marked straight away and taken on evidences. 17. The learned counsel for the plaintiff could not put forth any other proposition of law contrary to what the one which was suggested by R10 to R37, relating to the said marking of the Will. At the appeal stage the original Will itself has been filed. I am fully aware of the fact that as per Order 41 Rule 28 C.P.C. this Court could take additional evidence or send it to the lower Court for marking documents and taking additional evidence. But both the sides have not requested this Court to adhere to such a procedure and they would submit that the plaintiff is interested in enforcing her right and R10 and R37-the legal representatives of the deceased, are interested in resisting the claim of the plaintiff. Hence, in such a case, inasmuch as the Will happened to be the registered Will and the plaintiff was not as heir apparently or inheritor of D1 and D2, I am of the opinion that straight away that could be marked as Ex.B43 as already Ex.B1 to Ex.B42 documents were marked on the defendants' side. 18. In stricto sensu if the matter is viewed, as per the Will, D1 bequeathed only the house. But here the suit items 1 to 8 also are involved; however But D1 and D2 during their life time itself sold those suit items 1 to 8 to D3 and hence those items are not figuring in Ex.B43- Will. But the fact remains that R10 to R37 are the legal heirs/legal representatives of the deceased D1 and D2 apart from they happened to be the beneficiary under the Will. The learned counsel Mr.Seshadri for R10 to R37 would submit that the plaintiff did not take steps to file necessary affidavits to get set aside the abatement of appeal after getting the delay condoned in taking such steps. In my considered opinion such a procedure would be merely ritualistic so far this appeal is concerned as R10 to R37 of their own accord have come on record. The appellant/plaintiff and the defendants/respondents cannot blow hot and cold as it is primarily the duty of the plaintiff to implead the Legal Representatives of D1 and D2. When R10 to R37 entered appearance as the legal representatives/legal heirs/beneficiaries under the Will of D1, their presence could rightly be taken as the presence of legal representatives/legal heirs of D1 and D2 in the entire appeal and neither of the parties could be heard to raise any plea touching upon the status of R10 to R37 as the legal representatives/legal heirs of D1 and D2 relating to all the points involved in this appeal. Accordingly, learned counsel for R10 to R37 advanced his argument relating to items 1 to 8 and 9 of the suit properties. In this singularly singular factual matrix the punctilios of procedures cannot be pressed into service to thwart even handed justice based on a posteriori approach instead of a priori one. With this finding I would like to lay down as a general proposition of law https://hcservices.ecourts.gov.in/hcservices/ that in order to surmount a legal obstacle a litigant cannot put forth a point as against the opponent and in another breath in order to take advantage of another legal proposition in his support cannot take an antithetical stand to the one already taken in one and the same proceedings. Antithetical legal stands and legal status simultaneously cannot co-exist in a legal proceeding. Now then the plaintiff and the legal representatives of D1 and D2 are before this Court and in such a case there is no impediment for deciding the matter on merits de hors the technical arguements advanced on either side. As such I proceed further to discuss on the merits of the case. 19. Points (i) & (ii): Discussion on merits of the case based on evidence. The learned counsel for the plaintiff would argue that defendants 1 and 2 were deliberately false in denying the very genuineness of Ex.A1 as there is overwhelming evidence to demonstrate that D1 and D2 executed Ex.A1-the agreement to sell consciously. Inviting the attention of this Court to the deposition of deceased D1-Babu Chettiar as D.W.1, the learned counsel for the plaintiff would appositely develop his argument that D.W.1 himself during cross-examination candidly and categorically, supinely and pellucidly admitted about the execution of Ex.A1-the agreement to sell. Even in the written statement D1 and D2 were vague relating to their stand as to Ex.A1. An excerpt from paragraph 4 of the written statement of D.W.1 would run thus: "4. . . . . Subsequently when the time under the agreement is about the expire Subramania, came on 9.7.1979 and wanted defendants 1 and 2 to extent the time for completing the transaction by another three months for which defendants 1 and 2 were not willing. But Subramaniam made a further payment of Rs.4500/- and wanted defendants 1 and 2 to execute another agreement. It was not even then mentioned in whose favour such an agreement was to be taken. On receipt of this Rs.4500/- defendants 1 and 2 signed on stamp papers which was represented to be an agreement to sell. . . . . . . . . . . . . ."(emphasis supplied) 20. Not to put too fine a point on it, a cumulative reading of the stand of defendants 1 and 2 in the written statement, and in the deposition of D.W.1(P1) would make the point amply clear that defendants 1 and 2 by signing Ex.A1 as an agreement to sell had knowledge that they were signing an agreement to sell. However, the crux of the matter is to find out as to whether there had been actual consensus ad idem between the plaintiff on the one side and D1 and D2 on the other side relating to Ex.A1. 21. Put simply, there is considerable force in the submission made by the learned counsel for R10 to R37 that it was P.W.4, who was playing active role in bringing about the agreements to sell Ex.B1 and Ex.A1 and that the plaintiff is none but a name lender. At this juncture it is https://hcservices.ecourts.gov.in/hcservices/ worthwhile to refer to Ex.B1. No doubt the learned counsel for R10 to R37 would submit that Ex.B1 dated 19.4.1979 is the first agreement to sell, which emerged between D1 and D2 on the one side and one Muthusamy Iyer on the other side and it was cancelled as found detailed in the written statement as well as in the deposition of D.W.4 and thereafter alone Ex.A1 emerged. 22. Both sides in unison would admit about the genuineness of Ex.B1, even though the said document is not available here in view of the fact, as found out supra, that it was destroyed as per Rules by the lower Court. 23. Relating to Ex.B1, P.W.4 Subramanian would candidly and narratively depose that Ex.B1 emerged between D1 and D2 on the one side and Muthusamy Iyer on the other side, whereby Muthusamy Iyer agreed to purchase the suit properties for a total sale consideration of Rs.41,000/-; out of that amount, Rs.24,500/- was paid by him to D1 and D2; subsequently it was cancelled and Ex.A1 emerged between D1 and D2 on the one side and the plaintiff on the other side; and the plaintiff happened to be the servant working under Muthusamy Iyer. Relating to the advance amount of Rs.24,500/- Subramanian would submit that after the death of Muthusamy Iyer the said advance amount was returned to P.W.4 and he gave back