IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 15.3.2011 CORAM THE HON’BLE MR.JUSTICE R.S.RAMANATHAN SECOND APPEAL NO.674 OF 2001 AND C.M.P.NO.7103 OF 2001 S.Narayanappa Appellant/3rd Defendant vs. 1. Sampangi Ramayya 2. P.Muni Reddy 3. Chandra Reddy Respondents/Plaintiff & Defendants 1 & 2 For appellant : Mr.V.Raghavachari For R1 : Mrs.Chitra Sampath for Mr.T.Arockiadass For RR2 and 3 : No appearance. Prayer:- Second Appeal against the judgment and decree of the learned Principal District Judge, Dharmapuri at Krishnagiri dated 31.01.2001 made in A.S.No.52 of 1999 preferred against the judgment and decree of the learned Subordinate Judge, Hosur dated 11.12.1998 made in O.S.No.270 of 1996. JUDGMENT The third defendant is the appellant. The first respondent filed the suit for specific performance of an agreement of sale dated 5.7.1994 executed by respondents 2 and 3 herein. That suit was dismissed and the first respondent/plaintiff filed appeal and that appeal was allowed and against the same, the second appeal is filed by the third defendant. 2. The case of the first respondent/plaintiff was that the suit property belongs to respondents 2 and 3 and on 5.7.1994, he entered into an agreement with respondents 2 and 3 for the purchase of the suit property for a sale consideration of Rs.35,000/= and on that date itself, he paid Rs.28,000/= and possession was handed over to him and it was agreed that the sale shall be completed within a https://hcservices.ecourts.gov.in/hcservices/ period of one year and he was ready and willing to perform his part of the contract from the date of the agreement of sale and whenever respondents 2 and 3 were approached, they were evasive and he came to know that respondents 2 and 3 were attempting to sell the property to the third parties and therefore, issued a notice dated 2.12.1994 to respondents 2 and 3 calling upon them to execute he sale deed dated 6.12.1994 informing that he would be present in the Registrar's Office with the balance sale consideration and respondents 2 and 3 did not turn up and he later came to know that respondents 2 and 3 sold the property to the appellant on 5.12.1994 and he sent a notice dated 19.5.1995 to respondents 2 and 3 and the appellant and thereafter filed the suit for specific performance. 3. Respondents 2 and 3 filed a statement denying the agreement of sale in favour of the first respondent and stated that they entered into an agreement of sale with the appellant for the sale of the suit property on 26.8.1994 and also executed the sale deed in favour of the appellant on 5.12.1994 and possession was handed over to the appellant and the appellant is in possession and enjoyment of the suit property and the first respondent was not put in possession of the property under the alleged agreement of sale dated 5.7.1994. 4. The appellant filed a separate statement contending that he was the bona fide purchaser for value without knowledge of the alleged agreement of sale and he also disputed the agreement of sale executed by respondents 2 and 3 in favour of the first respondent and as he is the bona fide purchaser for value and in possession of the property, the plaintiff is not entitled to the relief prayed for. 5. The Trial Court held that the agreement of sale was not proved and respondents 2 and 3 did not execute the agreement of sale and dismissed the suit. 6. The first appellate court reversed the finding and held that the agreement of sale was executed by respondents 2 and 3 and possession was handed over to the first respondent under the said agreement of sale and the agreement of sale in favour of the appellant is not a genuine one and the appellant will not get any title to the suit property as the agreement of sale in favour of the first respondent was prior in point of time and the first respondent is entitled to the relief of specific performance and decreed the suit. Hence, the third defendant filed the second appeal. 7. The following substantial questions of law were framed at the time of admission of the second appeal:- "1. Whether the lower appellate court is justified in decreeing the suit for specific performance when the plaintiff put a false case of possession? 2. Whether the lower appellate court is right in displacing the burden of proof upon the appellant, https://hcservices.ecourts.gov.in/hcservices/ when it is the obligation of the plaintiff to prove and establish the genuineness? 3. Whether the courts below are right in accepting Ex.A1 of having been executed on 5.7.94 when the documentary proof under Ex.A6 is otherwise? 4. Whether the lower appellate court should not have applied the principles under Section 20 of the Specific Relief Act and dismiss the suit assuming the agreement is true? 5. When the plaintiff had pleaded the performance of the contract as 6 months on 5.7.1994 and when sufficient time is available for performance and when a notice is issued on 2.12.94 should not the courts below come to a conclusion that the document under Ex.A1 cannot be true? 6. When there is contradiction as regards the period by which the agreement should be implemented or enforced, the lower appellate court is right in coming to a conclusion that the time for performance is one year? 7. Whether the courts below ought not to have held that the appellant being a bona fide purchaser of value and not having knowledge of agreement is entitled to protection under the provision of Specific Relief Act." 8. It is submitted by the learned counsel for the appellant Mr.V.Raghvachari that even assuming that the agreement of sale dated 5.7.1994 Ex.A1 is valid and it was executed by respondents 2 and 3, the first respondent is not entitled to the relief of specific performance as he has not proved his readiness and willingness to perform his part of the contract from the date of agreement of sale till the suit was filed. According to the learned counsel, the agreement of sale dated 5.7.1994, Ex.A1 was not a genuine document and having regard to the admission of PW1 and the other witnesses, the document cannot be a genuine one and respondents 2 and 3 would not have executed the document and therefore, the first respondent is not entitled to the relief prayed for. He further submitted that even in the notice, Ex.A6, the first respondent has alleged that written agreement was executed on 5.12.1994 and therefore, after coming to know of the same in favour of the appellant, by respondents 2 and 3, the first respondent has created the agreement of sale, Ex.A1 as if it was executed by the respondents on 5.7.1994 when according to the first respondent, the written agreement of sale was executed only on 5.12.1994. He further submitted that the appellant, being a bona fide purchaser for value without knowledge of the earlier agreement of sale, is entitled to protect his possession and title and his title cannot be disturbed as the first respondent has not proved his readiness and willingness to complete his part of the contract. According to the learned counsel for the appellant https://hcservices.ecourts.gov.in/hcservices/ Mr.V.Raghavachari, in the month of October, under Ex.B3, the eastern property belonging to respondents 2 and 3 was purchased by the first respondent's son and if really the first respondent was ready and willing to perform his part of the contract by paying the balance amount, he would have got the sale deed in respect of the suit property which is adjacent to the property purchased by his son under Ex.B3 and no attempt was made by the first respondent to buy the property by offering the balance amount. He further submitted that admittedly, the notice was sent on 2.12.1994 by the first respondent calling upon respondents 2 and 3 to come and execute the sale deed on 6.12.1994 and when respondents 2 and 3 did not come forward to execute the sale deed on 6.12.1994, the first respondent ought to have filed the suit immediately and no explanation has been stated for not filing the suit immediately. He further submitted that even after coming to know of the sale deed executed in favour of the appellant, the first respondent did not take any action and issued the notice only in May 1995 and thereafter, filed the suit in June 1995 and no proper explanation has been given for keeping quiet after coming to know of the sale in favour of the appellant and therefore, the conduct of the first respondent would prove that he was not ready and willing to perform his part of the contract and as such, he is not entitled to the relief prayed for. 9. On the other hand, Mrs.Chitra Sampath, learned counsel appearing for and on behalf of the learned counsel for the first respondent Mr.Arokyadass submitted that as per the agreement of sale, one year time was available for the first respondent to complete the sale transaction and the agreement of sale was dated 5.7.1994 and the suit was filed in June 1995 and within the period of one year, the suit was filed and therefore, it cannot be stated that the first respondent was not ready and willing to perform his part of the contract. She further contended that the first respondent showed his bona fide and willingness to get the document executed by issuing notice in December 1994 and even after receipt of the notice, respondents 2 and 3 did not respond and thereafter, they sold the property to the appellant and on coming to know of the same, the first respondent issued notice, Ex.A6 and thereafter filed the suit immediately and hence, it cannot be stated that the first respondent was not ready and willing to perform his part of the contract and relied upon the judgment reported in MOTILAL JAIN v. RAMDASI DEVI ((2000) 3 MLJ 202 (SC)) and MST.SUGANI v. RAMESHWAR DAS ((2006) 3 MLJ 131 (SC)) in support of her contention. 10. Heard both the counsel. It is seen from the pleadings and evidence that the plaintiff/first respondent herein filed the suit with the specific allegation that he entered into the agreement of sale with respondents 2 and 3 on 5.7.1994 and paid a sum of Rs.28,000/= and he was put in possession of the property and he was ready and willing to pay the balance amount of Rs.7000/= and as one https://hcservices.ecourts.gov.in/hcservices/ year time was given in the agreement of sale, he did not file the suit immediately and after issuance of notice and after coming to know that the property was sold by respondents 2 and 3 in favour of the appellant, he filed the suit. Though in Ex.A6 it was stated that the written agreement of sale was executed on 5.12.1994, having regard to the earlier notice, Ex.A2 wherein it was specifically stated that the agreement of sale was executed on 5.7.1994, I am not able to accept the argument of the learned counsel for the appellant that the agreement of sale was created after coming to know of the sale in favour of the appellant and it was not a genuine one and was not executed by respondents 2 and 3. The first respondent issued a notice on 2.12.1994 to respondents 2 and 3 stating that they executed an agreement of sale on 5.7.1994 and received a sum of Rs.28,000/= and called respondents 2 and 3 to come and execute the sale deed on 6.12.1994. No reply was sent to that notice and even after the second notice, Ex.A6 reiterating the same allegations, no reply was sent by respondents 2 and 3. Only in the written statement, the defendants denied the execution of the agreement of sale and no explanation was given for not sending reply notice to the notice sent by the first respondent. Further, the execution of the agreement of sale, Ex.A1 dated 5.7.1994 was proved by the first respondent through PW2, PW3 and considering the oral evidence and the surrounding circumstances, the lower appellate court has rightly come to the conclusion that the agreement of sale was executed by respondents 2 and 3 in favour of the first respondent on 5.7.1994. Therefore, substantial questions of law 2 and 3 are answered against the appellant. 11. When the agreement of sale dated 5.7.1994 is upheld, the next question is whether the first respondent is entitled to the relief of specific performance. It is settled law that in the case of specific performance, the person is not entitled to get the decree even though there is a valid agreement and the plaintiff has come to court within the period of limitation, when the plaintiff is not able to prove his readiness and willingness to perform his part of the contract and the conduct of the plaintiff would disentitle him to the relief of specific performance. Therefore, the plaintiff cannot get a decree for specific performance merely on the ground that the agreement of sale was in his favour, the agreement of sale was a genuine one and the suit was filed within the time. It being a discretionary relief, the court has got to reject the claim of specific performance when it is proved that the plaintiff was not ready and willing to perform his part of the contract. The Honourable Supreme Court has held in the judgments cited supra that the compliance of readiness and willingness has to be in sprit and substance and not in letter or form and if the allegations in the plaint as well as evidence and the other circumstances lead to the conclusion that the plaintiff was not ready and willing to perform his part of the contract, even though he filed the suit within the period of limitation, the court need not grant the relief of specific https://hcservices.ecourts.gov.in/hcservices/ performance. Therefore, we will have to see whether the plaintiff/the first respondent herein was ready and willing to perform his part of the contract. 12. Admittedly, the first respondent's son Dayappa obtained a registered sale deed from respondents 2 and 3 on 5.10.1994, Ex.B3 in respect of the property situated on the east of the suit property. It is not the case of the first respondent that he was not aware of the purchase by his son or he and his son are not on cordial terms. It is the specific case of the first respondent in the notices issued by him and also in the plaint that he was ever ready and willing to perform his part of the contract. In that case, what prevented the first respondent from getting a sale deed in respect of the suit property registered by respondents 2 and 3 alongwith the registration of the property in favour of his son. There is no explanation offered by the first respondent for not getting the sale deed registered alongwith the sale deed in favour of his son. 13. Further, it is stated in Ex.A2 notice that respondents 2 and 3 are attempting to sell the suit property to third parties and therefore, respondents 2 and 3 were called upon to come to the Registrar's office on 6.12.1994 to execute the sale deed. Admittedly, on 6.12.1994, respondents 2 and 3 did not come to the Registrar's office and register the sale deed. Even thereafter, no steps were taken by the first respondent either to send any notice informing respondents 2 and 3 about their conduct in not coming to Registrar's office to execute the sale deed, or to file the suit for specific performance. Further, the first respondent came to know about the sale in favour of the appellant even in the month of December 2004 as evident from Ex.A5. Ex.A5 is the certified copy of the sale deed in favour of the appellant executed by respondents 2 and 3 on 5.12.1994. The first respondent applied for the copy of the sale deed, Ex.A5 on 23.12.1994 and got the certified copy of the sale deed on 26.12.1994. Therefore, even in December 1994, he was aware that the suit property was sold by respondents 2 and 3 to the appellant. Even thereafter, he did not file the suit for specific performance and he only sent a notice in May 1995 calling upon respondents 2 and 3 to execute the sale deed in his favour. Therefore, the conduct of the first respondent in not filing the suit immediately on coming to know of the sale deed in favour of the appellant would prove that he was not ready and willing to perform his part of the contract. Though under the agreement of sale, one year time was given to the respondents to complete the contract, he ought not have waited for completion of the period when he comes to know that the property was sold by respondents 2 and 3 in favour of the appellant even within a period of six months from the date of agreement of sale in his favour. 14. It is settled law that in a suit for specific performance, the plaintiff must be ready and willing to perform his part of the https://hcservices.ecourts.gov.in/hcservices/ contract from the date of agreement of sale and if the plaintiff is not ready and willing even for a short period, he is not entitled to the relief of specific performance. In this case, as stated supra, there was no explanation on the part of the first respondent in not taking action by filing suit immediately on coming to know of the sale deed executed in favour of the appellant. 15. M/s.Chitra Sampath, learned counsel for the first respondent relied upon the judgment reported in MOTILAL JAIN v. RAMDASI DEVI ((2000) 3 MLJ 202 (SC)) for the proposition that when a suit was filed within a period of limitation, there is no delay and the relief cannot be denied on the ground of delay. 16. According to me, the facts of that case are entirely different and in that case, immediately after the issuance of notice, the suit was filed and the plaintiff in that suit was not aware of the sale of the property by the owner in favour of the third party before filing of the suit. Therefore, the proposition of law laid down in that case will not apply to the facts of this case. Similarly, the facts of the case reported in MST.SUGANI v. RAMESHWAR DAS ((2006) 3 MLJ 131 (SC)) are also different from the facts of the present case. In the reported judgment, the Honourable Supreme Court has held that the notice about the execution of the sale deed in favour of third parties was known in July 1978 and the suit was filed in January 1979 and therefore, the suit was within time. Further, in that judgment, it has also been held that any person seeking the benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout, entitling him to the specific relief. The provision imposes a personal bar and the court has to grant the relief on the basis of the conduct of the person seeking the relief. 17. In this case, it is not the contention of the appellant that the suit is not filed within time. As a matter of fact, there is no such issue and according to me also, the suit is not barred by time and the suit was filed within the time. Nevertheless, the fact that the first respondent did not take any steps to get the sale deed executed in October 1994 alongwith the sale deed obtained by his son from respondents 2 and 3 and did not take any action after coming to know of the sale in favour of the appellant would only lead to the conclusion that the first respondent was not ready and willing to perform his part of the contract. It being a discretionary relief, when the first respondent has not proved his readiness and willingness, he is not entitled to the relief of specific performance and this fact has not been properly appreciated by the lower appellate court and hence, substantial questions of law 4, 5 and 6 are answered in favor of the appellant. 18. It is admitted that the suit property is a grazing field and both he parties claim to be in possession of the property. As per https://hcservices.ecourts.gov.in/hcservices/ Ex.A1, the possession was handed over to the first respondent and as per Ex.A5, possession was handed over to the appellant. Admittedly, the appellant has purchased the adjacent two acres on the western side from respondents 2 and 3 and therefore, there is every possibility or probability that he must have been in possession of the property after the sale in his favour. Further, it is the admitted that the parties are residing in the same village and having regard to the fact that the appellant has also purchased the adjacent two acres and is in possession of the same, the first respondent would not have kept quiet if he was given possession of the suit property under the agreement of sale under Ex.A1. Except the averment made in Ex.A1 and in the plaint, no evidence was let in by the first respondent to prove his possession. 19. On the other hand, the appellant was the owner of two acres of land on the western side and he purchased the property under the registered sale deed dated 5.12.1994 would lead to the presumption that he must be a bona fide purchaser for value and he was put in possession of the same. Hence, substantial questions of law 1 and 7 are answered in favour of the appellant. 20. As the first respondent failed to prove his readiness and willingness to perform his part of the contract, he is not entitled to the relief of specific performance. Hence, the second appeal is allowed. The judgment of the lower appellate court is set aside. The judgment and decree of the Trial Court is restored. No costs. The connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ssk. To 1. The Principal District Judge, Dharmapuri at Krishnagiri. 2. The Subordinate Judge, Hosur. Copy to : The Section Officer, VR Section, High Court, Madras 1 cc To Mr.V.Raghavachari, Advocate, SR.18222 JUDGMENT IN S.A.No.674 of 2001 PA (CO) RH (25.4.11) https://hcservices.ecourts.gov.in/hcservices/