IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-12-2009 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN A.S. No. 536 of 1991 and C.M.P. No. 10026 of 2006 S. Santha Rajagopal .. Appellant/Plaintiff Versus 1. T. Sadasivam 2. K.T. Dhandayutham 3. T.Narayanan 4. Saraswathi Ammal 5. Suguna 6. Shyamala .. Respondents/Defendants 2 to7 Appeal filed under Section 96 of the Code of Civil Procedure against the decree and judgment dated 15.11.1990 made in O.S. No. 51 of 1983 on the file of the Principal Subordinate Judge, Salem. For Appellant : Ms. P.T. Asha for M/s. Sarvabhauman Associates For Respondents : Mr. K.C. Rajappa for RR1 to 3 Mr. T.R. Rajaraman for RR4 to 6 JUDGMENT The unsuccessful plaintiff before the court below is the appellant in this appeal suit. The plaintiff has filed O.S. No. 51 of 1983 for specific performance and prayed to direct the defendants to execute the sale deed in favour of the plaintiff free from all encumbrances after receiving the balance sale consideration of Rs.89,000/- and on their failure to do so, to execute the sale deed through Court. On dismissal of the suit, the present appeal has been filed. 2. The averments contained in the plaint are that on 10.04.1980, Thamanna Chettiar, the first defendant in the suit, entered into an agreement of sale with the plaintiff agreeing to sell the property for a sum of Rs.1,00,000/-. The time for execution of the sale deed was fixed at three months. The Plaintiff paid an advance of Rs.20,000/- on the date of signing of the agreement of sale. Subsequent to the execution of agreement of sale, since the sons of the first defendant have filed a suit in O.S. No. 905 of 1980 restraining the first defendant from executing any sale deed in https://hcservices.ecourts.gov.in/hcservices/ favour of the plaintiff or from alienating the suit property to third parties and also obtained an order of injunction obtained against the first defendant, the first defendant has made an endorsement in the reverse of the sale agreement thereby agreed to extend the period for completing the sale from 10.07.1980 for a further period of two years. It was further averred that since the period was extended by another two years, a sum of Rs.10,000/- out of the advance amount of Rs.20,000/- was returned by the first defendant to the plaintiff and an endorsement to that effect was also made in the agreement of sale in which both the parties have signed. On 30.10.1982, the first defendant sought for another six months time till 10.01.1983 for completing the sale and received a sum of Rs.1,000/- towards further sale advance for which also an endorsement was made. According to the plaintiff, the property agreed to be sold by the first defendant is the portion of the property allotted to him in a family partition and therefore, the first defendant, being the absolute owner, is having every right to sell the property to the plaintiff. 3. According to the plaintiff, inspite of repeated demands made by her, the first defendant has not even disclosed the result of the suit filed by his sons against him and failed to execute the sale deed in her favour. Thereafter, the plaintiff came to know that the first defendant colluded with his sons and filed the suit in O.S. No. 905 of 1980 with a view to delay the execution of the sale deed. The Plaintiff has also stated that she was always ready and willing to perform her part of the contract. Infact, the plaintiff was ready to pay the balance sale consideration of Rs.89,000/- and get the sale deed executed in her name. 4. In view of the delay on the part of the first defendant to execute a sale deed, the plaintiff issued a notice dated 24.12.1982 through her advocate calling upon the first defendant to execute the sale deed, but the first defendant evaded and avoided to receive the notice, hence, the suit was filed. Pending suit, the first defendant died on 04.08.1983 leaving behind the defendants 2 to 7 as his legal heirs, therefore, they were impleaded as defendants in the suit. It was further pleaded by the plaintiff that the first defendant had executed a registered 'Will' dated 10.04.1974 bequeathing the suit property in favour of the defendants 5 to 7 exclusively and therefore also the defendants 2 to 7 were added as parties to have a binding adjudication. 5. The first defendant, even during his life time, filed written statement. In the written statement, the first defendant admitted the execution of agreement of sale, which was marked as Ex.A1 in favour of the plaintiff, but he would only contend that his sons have filed O.S.No. 915 of 1980 on the file of the District Munsif Court, Salem, challenging his legal right over the property stating that he is having only a life estate over the suit property and therefore he has no right to sell the suit property to the plaintiff. Furthermore, the suit was decreed exparte on 03.09.1982 due to his non-appearance and that he was taking steps to get the exparte order set aside. He would further contend that he is the absolute owner of the property and that the plaintiff and her husband are tenants in the suit property. Even though he was ready to receive the balance sale consideration and execute the sale deed, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff refused to pay the amount inspite of several requests made by him. It is only the plaintiff who had not fulfilled the terms of the contract and therefore she had lost all her rights and consequently the contract cannot be enforced. 6. After the death of the first defendant, the defendants 3 and 4 have jointly filed a written statement contending interalia that they have obtained interim injunction restraining their father, the first defendant, from alienating or dispossessing the suit property. The suit was originally decreed exparte on 03.09.1982. Thereafter, an application in I.A. No. 167 of 1983 was filed for condoning the delay in filing an application to set aside the exparte decree and another application for setting aside the exparte decree, in which they have filed counter challenging the maintainability of the said applications. The widow and daughters of Thamanna Chettiar, the first defendant, have also filed I.A.Nos. 1601 and 1602 of 1983 to bring them on record. According to the defendants 3 and 4, the plaintiff is fully aware of the pendency of the litigation, which commenced a little time after the alleged sale agreement entered into by the plaintiff with the first defendant and therefore the so-called endorsement dated 05.07.1980 at the reverse of the agreement of sale, extending the time for completing the sale by two years, is illegal and not sustainable. When the legal right of the first defendant itself was questioned by filing O.S. No. 915 of 1980, the suit for specific performance is not maintainable and the suit is hit by the principles of lis pendence. They would further contend that the endorsement in the agreement itself would reveal that it is an expression of inability to convey the property to the plaintiff and in such an event, the first defendant cannot have the right to extend the time for completing the contract. It was also specifically contended that by virtue of the endorsement dated 05.07.1980 and return of part of the sale advance to the tune of Rs.10,000/-, the sale agreement has become unenforceable in law. They would further contend that the first defendant has no legal right to execute the sale deed free from any encumbrance in view of the pendency of O.S. No. 915 of 1980. It was further contended that the plaintiff was never ready and willing to pay the amount and the readiness and willingness has not been proved by her. It was also contended that the second endorsement for extension of the contract made on 30.06.1982 has not been endorsed in the alleged agreement of sale dated 10.04.1980. The Plaintiff, having realised the impediment in getting the sale deed due to the litigation has given up the idea of entering into the contract and therefore the readiness and willingness projected by her is false. They would further contend that they have challenged the alleged partition deed dated 19.05.1961 by which the first defendant has got right to execute the sale agreement on the ground that the suit property is not the property of the first defendant. The fact that part of the sale amount was returned to the plaintiff would disentitle her from seeking the relief of specific performance. 7. The defendants 2 to 4 have also filed additional written statement wherein they have stated that the endorsements are all invalid as at that time the suit filed by the sons of first defendant in O.S.No. 915 of 1980 was pending. https://hcservices.ecourts.gov.in/hcservices/ 8. The fifth defendant filed separate written statement which was adopted by the sixth and seventh defendants. The fifth defendant would contend that the first defendant was not the owner of the property and the agreement of sale is invalid and not binding on them. It was further stated that the plaintiff has not fulfilled her part of the contract and therefore she is not entitled for the relief. The Plaintiff's husband, who was a tenant and paying the rent to the fifth defendant, had abruptly stopped paying the rent. Therefore, according to the fifth defendant, the plaintiff and the defendants 2 to 4 are colluding with each other. The first defendant was always ready and willing to perform his part of the contract, but the balance sale consideration was not paid by the plaintiff and therefore, the agreement of sale is unenforceable. It was further contended that if the suit is to be decreed, the defendants 5 to 7 alone are entitled to get the balance sale price and as per the Will executed by the first defendant, they are entitled to get the subject matter of the property. 9. In the additional written statement filed by the seventh defendant, the endorsement made on 05.07.1980 was denied and the discrepancy relating to the date made by one of the witnesses as 15.07.1980 was pointed out. 10. The Plaintiff filed reply statement in regard to the discrepancy pointed out in the additional written statement regarding the wrong mentioning of the date by one of the witnesses in the endorsements and claimed that it is only due to inadvertence. Even otherwise, if 15.07.1980 is taken into consideration, the suit is not barred by limitation. 11. Before the court below, on the side of the plaintiff, PWs 1 to 3 were examined and Exs. A1 to A10 were marked. On behalf of the defendants, DWS 1 and 2 were examined and Exs. B1 to B6 were marked. Based on the pleadings, evidence on record and the arguments made on both sides, the court below concluded that the plaintiff is not entitled for the relief of specific performance. Even though alternative plea of return of the money was not sought for, since it was admitted by both sides that amount was paid by the plaintiff, the court below ordered for refund of the advance amount of Rs.11,000/- with interest to the plaintiff. The Plaintiff, aggrieved by the decree granted by the court below only to the extent of getting refund of the advance amount, has filed the present appeal suit. 12. Heard the counsel for the parties. The points for consideration in this appeal are i) Whether as per the endorsement dated 05.07.1980, Ex.A2, made in Ex.A1, agreement of sale, along with the refund of part of the advance amount, will make the contract forfeited? ii) Whether the contract entered into between the parties are concluded contract? iii) Whether the suit for specific performance is hit by the principles of lis pendence in view of the pendency of O.S. No. 915 of 1980 filed by the sons of the first defendant? https://hcservices.ecourts.gov.in/hcservices/ iv) Whether the plaintiff is entitled for the relief of specific performance? 13. Ms. Asha, learned counsel appearing for the plaintiff vehemently contended that as per the agreement of sale, Ex.A1 dated 10.04.1980, the period of the contract was fixed at three months, which expired on 10.07.1980. The sale price fixed was Rs.1,00,000/- out of which a sum of Rs.20,000/- was paid by the plaintiff to the first defendant as advance. As per the recitals in the agreement of sale, the vendor Thamanna Chettiar, the first defendant in the suit, had acquired clear title over the suit property by virtue of a settlement deed dated 17.06.1961 pursuant to which he was in possession and enjoyment of the suit property. Therefore, the first defendant has a valid right and saleable interest over the suit property. It was further argued that before expiry of three months, the sons of the first defendant have filed O.S. No. 915 of 1980 for the relief that the suit property belonged to them, the first defendant has got only life estate right and after the life time of the first defendant, the property would automatically devolve upon them, hence, they have filed the suit and sought for possession of the property. In that suit, as early as on 14.05.1980, an interim injunction was granted restraining the first defendant from encumbering or alienating the suit property. Pursuant to that, the first defendant was prohibited from executing the sale deed in favour of the plaintiff. Therefore, the first defendant and the plaintiff mutually entered into an understanding between them and agreed to extend the contract. It is further argued that only after the interim injunction granted by the Court, the endorsement, Ex.A2 dated 05.07.1980 was made in the original agreement, Ex.A1. In view of the fact that the contract is sought to be extended for a further period of two years, a part of the advance amount of Rs.10,000/- was received by the plaintiff. In the endorsement, Ex.A2, it was made clear that Rs.10,000/- alone is treated as advance and therefore, the first defendant, who was prohibited by an order of Court from executing the sale deed, as a law abiding citizen, has voluntarily come forward and executed Ex.A2, endorsement, as the plaintiff and first defendant have no go except to extend the period of contract. It was further argued that since the suit was pending, the first defendant further extended the time by six months upto 10.07.1982 by making an endorsement, Ex.A3. It was further argued that there was a minor discrepancy as one of the witnesses to Ex.A2 endorsement has mentioned the date as 15.07.1980 instead of 05.07.1980, which was only a bonafide and inadvertent mistake. Even assuming without admitting that the endorsement was made on 15.07.1980, the period was further extended by six months by virtue of an endorsement Ex.A3. In any view of the matter, such a discrepancy is only a minor one and it cannot be called as a legal flaw or otherwise. 14. It is further argued by the counsel for the plaintiff that even after extending the contract on two occasion, the suit was pending, besides that it was set exparte as against the first defendant and on the application filed by the first defendant, the exparte order was set aside. In the meantime, the wife and daughters of the first defendant have filed application to implead themselves by contending that they have right over the property. In such circumstance, there was a necessity to get the endorsement under https://hcservices.ecourts.gov.in/hcservices/ Ex.A3. Moreover, the period under Ex.A2 came to an end on 10.07.1982 before the exparte order and therefore the plaintiff and first defendant have agreed to extend the contract period by another six months. To further strengthen the contract, apart from the advance amount of Rs.10,000/- in the hands of the first defendant, a further sum of Rs.1,000/- was paid by the plaintiff as advance which would indicate that the plaintiff was always ready and willing to pay the balance sale consideration. The fact that Rs.1,000/- was advanced by the plaintiff on that day i.e.,30.06.1982 for extending the contract by six months would only go to show that the plaintiff was ready and willing on her part and she has ready money available with her to pay. In fact, the documents namely income tax returns for the period 1983-1984, Exs. A6 to A10 would categorically indicate that the plaintiff has got means to pay the balance sale consideration. The income tax return comprised both the firm in which the plaintiff was a partner and her individual return, which would only disclose the plaintiff's readiness and willingness to undertake the contract. It will also indicate that the plaintiff can pay the balance sale consideration from the firm or from her own earnings, which are sufficient to show the readiness of the plaintiff. The learned counsel for the plaintiff/appellant would contend that the first defendant alone was responsible for the inordinate delay because his sons have filed O.S.No. 950 of 1980 after the execution of Ex.A1, agreement of sale to circumvent the legitimate claim of the plaintiff. The Plaintiff also came to know that the first defendant, along with his sons seems to have stage managed the whole transaction by inducing his sons to file a suit for injunction on the one hand and by making endorsements in favour of the plaintiffs extending the contract on the other hand. Therefore, at no point of time, the plaintiff could be found at fault. In fact, this will also be proved by the fact that the plaintiff has issued notice dated 24.12.1982, Ex.A4, calling upon the first defendant to receive the balance sale consideration and execute the sale deed. Even though it was served on the first defendant, the first defendant has not chosen to give any reply. The fact that the first defendant has not replied would prove that the default is only on the part of the first defendant and not on the plaintiff. 15. The learned counsel for the plaintiff further argued that since the first defendant in the written statement has not at all pleaded anything averse against the endorsements in Exs. A2 and A3, and he is the person who executed and having admitted the endorsements without any demur, the legal representatives on record, after his death, has no right to say anything about the endorsements in Exs. A2 and A3. Therefore, the defendants 2 to 7 are estopped and prohibited from claiming anything against the endorsement inasmuch as the executor himself, without any demur, admitted the sale agreement. Moreover, this defence is not open to the legal heirs of the first defendant. Inso far as the willingness and readiness is concerned, excepting a bald allegation made by the first defendant that the plaintiff was not ready to receive the balance sale consideration, no where it was pleaded by the first defendant that he has issued any notice calling upon the plaintiff to pay the balance sale consideration. Contra, the first defendant could not have demanded the balance sale consideration, because, by virtue of an order of injunction granted by the court, he was prohibited and restrained https://hcservices.ecourts.gov.in/hcservices/ from executing the sale deed in favour of the plaintiff. Subsequently also, the suit itself was decreed exparte and on the application filed by the first defendant, the exparte order was set aside. Under those circumstances, the claim of the plaintiff has to be accepted inasmuch as she was always ready and willing to perform her part of the contract and prayed for setting aside the decree and judgment passed by the court below. 16. Per contra, Mr. K.C. Rajappa, learned counsel appearing for the Defendants 2 to 4 vehemently argued that the contract itself has become unenforceable for the reason that immediately after the execution of the sale agreement, the suit in O.S. No. 915 of 1980 was filed by the sons of the first defendant stating that the first defendant is not the absolute owner of the suit property and he has only life estate over the property. Furthermore, interim injunction was granted by the competent Court restraining the first defendant from executing the sale deed. Therefore, the endorsements on the back of the agreement namely Exs. A2 and A3 are invalid. The first defendant has no right to encumber the suit property. On the execution of the endorsement under Ex.A2, when part of the amount was re-paid by the vendor, the first defendant, to the plaintiff, the contract comes to an end and therefore the contract is unenforceable in law. 17. He further argued that the agreement itself is not a concluded contract in view of the subsequent development namely refund of 50% of the advance amount and even thereafter, subsequently, in the year 1982, a further advance of Rs.1,000/- was paid by the plaintiff, therefore, there is no concluded contract to be performed, hence, the sale agreement itself has become unenforceable in law. Further, the rights of the party has been in cloud, which is also the subject matter of a suit and therefore, the suit for specific performance is not maintainable when the other suit in O.S. No. 915 of 1980 was pending. In such circumstance, the suit filed by the plaintiff is hit by the principles of lis pendence and it is not maintainable in law. 18. The learned counsel for the Defendants 2 to 4 further pleaded that the plaintiff was never ready and willing to perform her part of the contract. The fact that the sale agreement was sought to be extended for a period of two years beyond the original period of three months on the ground that an order of injunction was passed by the competent court would indicate that the plaintiff was suffering to get along with the said transaction as it is no longer possible for her to have the sale deed executed. Inasmuch as the plaintiff also sought for second extension by six months, it has to be concluded that the plaintiff was never ready and willing to perform her part of the contract. 19. Lastly, he would contend that the plaintiff's husband was a tenant in respect of the suit property and he is fully aware that the first defendant has no manner of right to enter into the sale agreement. The Plaintiff's husband has manipulated the sale agreement and allegedly obtained extension for performance of the contract and therefore also the suit is not maintainable. He further contended that if the advance amount is sought for or refunded, then https://hcservices.ecourts.gov.in/hcservices/ the contract cannot be proceed further and it cannot be a concluded contract. 20. Mr. T.R. Rajaraman, learned counsel for the defendants 5 to 7, who are wife and daughters of the first defendant Thamanna Chettiar, would contend that presently, the defendants 5 to 7 are the actual owners of the suit property by virtue of a Will executed by the first defendant and the same was also mentioned in the written statement. Furthermore, the suit in O.S.No. 915 of 1980 was disposed of by the court below during the pendency of the present appeal. In fact, the court below returned the plaint in O.S. No. 915 of 1980 to be presented in the appropriate court as the valuation of the suit property in that suit was questioned. The learned counsel also brought to the notice of this Court that another suit was filed by the mother of the defendants namely the fifth defendant for declaration to declare that the Will as null and void. Even that suit was also returned by the court below along with O.S. No. 915 of 1980 and both the suits were directed to be re-presented before the competent Court. Therefore, CMP No.10026 of 2006 was filed pending the present appeal for reception of additional documents namely the decree and judgment dated 17.07.1995 made in O.S. No. 915 of 1980 and the Plaint in P.O.P. No. 12 of 2002 on the file of the Subordinate