IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 AS.No. 152 of 2000(A) ------------------------------- OS.126/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANTS/DEFENDANTS: ------------------------------------------- 1. P.S. BHAVANI, W/O.C.K. RADHAKRISHNAN, AGED 40 YEARS, PARAPPILLIL HOUSE, PARAPPILLIL LANE, NEAR HILL PALACE, THIRUVANKULAM P.O., ERNAKULAM DISTRICT. 2. JAYAKUMAR, S/O.RADHAKRISHNAN, AGED 21 YEARS, DO HOUSE, DO. LANE, DO. DO. DO. 3. JAYASREE, D/O.C.K.RADHAKRISHNAN, AGED 19 YEARS, DO. HOUSE, DO. LANE, DO. DO. DO. BY ADV. SRI.T.M.CHANDRAN, SRI.JOSHI VARGHESE, SRI.A.C.CHACKO, SRI.S.SUJITH, SRI.V.A.SASIDHARAN. RESPONDENT/PLAINTIFF: -------------------------------------- K.P. UNNIKRISHNAN, S/O.V.K. PADMANABHAN NAIR, AGED 52 YEARS, “POORNASREE”, IRIMPANAM DESOM, THIRUVANKULAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN, SRI.DEEPAK T.NEDUNGADAN, SRI.V.JAYAKUMAR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/08/2010, ALONG WITH A.S.154 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 152 of 2000(A) ORDER ON C.M.P. NOS.1335/2000 & 3821/2001 IN A.S. NO.152/2000 DISMISSED 10/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. Nos. 152 and 154 OF 2000 = = = = = = = = = = = = = = = Dated this the 10th day of August, 2010. J U D G M E N T A.S.152/00 is preferred against the judgment and decree in O.S.126/95 of the III Addl. Sub Judge, Ernakulam and the other appeal is preferred against the judgment and decree in O.S.129/95. Both the suits are for specific performance of the contract. The plaintiff has entered into a contract with the first defendant in O.S.126/95 with respect to purchase of 5 cents of land for a consideration of Rs.80,000/- and had paid an advance of Rs.2,500/-. In the other suit the minors(represented by natural guardian) had entered into a contract with the plaintiff for sale of 4.5 cents of property for a consideration of Rs.62,500/- of which Rs.2,500/- is paid as advance. The defendants A.S. Nos.152 & 154 OF 2000 -2- in O.S.129/95 are sister's children of Bhavani who is the first defendant in O.S.126/95. The father of the minors namely P.K.Radhakrishnan had married Bhavani's sister and on her death had married Bhavani or in other words Bhavani has become the 2nd wife of Radhakrishnan and defendants in O.S.129/95 are the children of said Radhakrishnan born to him in his first wife namely the sister of Bhavani. The Court on a consideration of the materials had decreed both the suits by declaring an assignment deed executed by Bhavani in favour of the minor children as not binding on the plaintiff and then also to execute assignment deeds in favour of the plaintiff with the father of the minor children as the witness to the documents. So aggrieved by the decision in both these cases the defendants have come up in appeal. A.S. Nos.152 & 154 OF 2000 -3- 2. Heard the learned counsel for the plaintiffs as well as defendants. Now for the purpose of properly analysing the case it is desirable to understand both the cases independently. It is true that the property having a total extent of 9.5 cents were set apart jointly to the share of these people. 3. Now as per Ext.A1 agreement Bhavani agrees to sell 5 cents of property put up as schedule of property and claimed to be her property for a consideration mentioned in the document. On the very same day the defendants in the other suit also enters into an agreement with the plaintiff with their father as guardian to sell 4.5. cents of property in favour of the plaintiff for a consideration mentioned in the document. It can also be seen that Mr. Radhakrishnan is a witness to Ext.A1 and Bhavani A.S. Nos.152 & 154 OF 2000 -4- is a witness to Ext.A2. So it was with the junction of all the parties who are claiming to have interest over the property Exts.A1 and A2 had been entered into between the parties. Now the learned counsel for the defendants would submit before me really there is no division of property of 9.5 cents and if the property is compartmentalized into two each will be only to be entitled to 4.45 cents of land and therefore Bhavani could not get 5 cents of land. When parties are relatives and their relationship is also cordial when they have decided to separate the property between the two it is the Will of the parties that will have predominance rather than a mathematical or arithmetical conclusion or precision. Therefore with both eyes opened the owners of the property on the very same date with the junction of all together had A.S. Nos.152 & 154 OF 2000 -5- executed Exts.A1 and A2. Therefore the contention of the learned counsel for the defendants that Bhavani could get only 4.75 cents of property and therefore she cannot assign 5 cents of property. It cannot be accepted. 4. Now the next contention is with respect to Ext.A1 agreement. Learned counsel for the appellant namely defendants would contend before me there was only one renewal of the agreement by virtue of an endorsement on 6.2.94 whereby an additional amount of Rs.5,000/- had been received and the terms of the contract has been extended up to 13.6.94. 5. On the other hand the learned counsel for the plaintiff would contend that there was an endorsement on 21.6.94 by Bhavani in Ext.A1 that by virtue of the fact that proceedings A.S. Nos.152 & 154 OF 2000 -6- before the Munsiff Court was not over and therefore the parties have agreed among themselves to extend the terms of the contract till 31.12.94. It is witnessed by Radhakrishnan the husband of Bhavani and the father of the minor children. Now the learned counsel for the appellant would canvass before me it is a fraudulent act done by the plaintiff and that it is further re-enforced by the fact that no amount is paid at that point of time. Learned Subordinate Judge had considered these matter in extenso in his judgment. It has to be remembered the parties have decided to enjoy the property as per the terms of the agreement. But the hurdle was that the order of the Court was not available on 21.6.94 and it is stated that it was only done on 1.8.94 by Ext.A3 delivery report. Therefore at a time when the A.S. Nos.152 & 154 OF 2000 -7- endorsement is made or alleged to be made there was no order of the Court putting the parties in actual possession of the property. When such is the situation, by the of the conduct of the parties it is quite evident that there should have been an extension for the purpose of the contract. Or in other words without getting actual possession of the property there cannot be any transfer of the property in favour of the purchaser. So as rightly discussed and found by the trial court I hold that the endorsement dated 21.6.94 is valid. It is quite legitimate when you consider that the plaintiff is entitled to sue for specific performance of the contract. Now what the defendants have done is Bhavani Amma transfers the property in favour of the minor children and contends that the property is transferred and therefore she cannot A.S. Nos.152 & 154 OF 2000 -8- be compelled to perform the contract. When the period of contract as found by me earlier is valid upto 31.12.94 any action done by the defendants will militate against the terms of the agreement and therefore cannot be valid and so any document executed by Bhavani Amma by that time after becoming the wife of Radhakrishnan in favour of the children may not be accepted as valid and binding and it is not a bonafide transfer for valuable consideration. So that means the plaintiff in O.S.126/95 is entitled to specific performance of the contract. 6. Now the learned counsel for the appellant very strongly contends before me that S.20 of the Specific Relief Act states that it is not compulsory on the part of the Court to grant decree for specific performance in all cases and it is a discretionary jurisdiction. A.S. Nos.152 & 154 OF 2000 -9- There cannot be any quarrel about that preposition. On the very same section the very next sentence makes it very clear that when the Court decides the question of discretion, it must be exercised judiciously and not arbitrarily or capriciously. In order to substantiate that point the learned counsel would contend here is a case where there is no proper division of the property between the defendants. So it may result in injustice being done to one of the parties. But I cannot accept that argument for the reason that with both eyes open all parties have effected an agreement describing the property and another thing is the total extent is 9.5 cents out of which 5 cents goes to Bhavani Amma and 4.5 cents to the minor children. It cannot be said to be arbitrary and therefore that should not be used against the A.S. Nos.152 & 154 OF 2000 -10- plaintiff. When the plaintiff who has parted with money and was ready and willing to perform his part of the contract and he has come to the Court within the stipulated time the Court is duty bound in the absence of any other circumstances to grant relief of specific performance and therefore the contention of the learned counsel for the appellant cannot be accepted. Learned counsel would then contend before me that S.14 also gives a discretion to the Court to give compensation to the purchaser when it does injustice to the other side. I feel that injustice is meted out to the plaintiff and when he has satisfied all the terms of specific performance discretionary jurisdiction can be exercised only in his way otherwise it will manifestly result in injustice and therefore that also cannot be accepted. So A.S. Nos.152 & 154 OF 2000 -11- I find that in O.S.126/95 the plaintiff is entitled to a decree for specific performance. 7. Now the next contention is with respect to O.S.129/95. It has to be remembered that the agreement is entered into between the minors and plaintiff. Their natural guardian is on the one side and the plaintiff on the other side. The extent of land involved is 4.5 cents and the consideration is Rs.62,500/-. The law treats minor's property as a precious one and limitations are very much there while dealing with the property of minors'. From time immemorial and under the pristine Hindu Law the minor's property can be sold only when there is necessity for joint family or for spiritual purposes. 8. After the implementation of the Hindu Minority and Guardianship Act, S.8 seeks to A.S. Nos.152 & 154 OF 2000 -12- shelter the right of minors'. Of course S.8 does not deal with joint family property of a minor but it deals with individual property of minors'. Now the property in this case are the individual property of minors' and therefore S.8 will have direct impact on the same. S.8 of the Hindu Minority and Guardianship Act requires the natural guardian to obtain permission of the Court for selling the minors' property. Now it may be argued that Ext.A2 is only in the stage of an agreement to sell. But an agreement to sell creates a right in favour of the purchaser to enforce that right. So therefore there is a duty cast upon the minors' father to obtain permission from the Court. Now whether it was void or voidable had been the subject matter of discussion for long number of years and ultimately the Hon'ble Supreme Court has held A.S. Nos.152 & 154 OF 2000 -13- that it is voidable at the instance of the minors. Now it is under these circumstances the Court has to find out whether specific performance has to be granted or not. 9. In the decision reported in Lakshmayya v. Venkateswarlu (AIR 1947 Madras 67) the Court held that so far as alienations by guardians of minors are concerned, specific performance of such contracts can be refused in the discretion of the Court if the minor should object to it on the ground that there is no mutuality. The Hon'ble High Court of Madras also held that will not be the case with respect to a joint family property. Here admittedly it is a separate property of the minors and after attainment of majority they have filed an additional written statement not ratifying the agreement and therefore they had stated that their interest A.S. Nos.152 & 154 OF 2000 -14- will be jeopardized if the agreement is allowed to be performed into a specific performance of a contract. The minors interest being a most valuable right and when the plaintiff who is an educated bank employee, he should have taken recourse to think that it is not correct to purchase the minors property and therefore it is a fit case in O.S.126/95 that the discretionary relief of specific performance has to be refused. Therefore I decline to grant specific performance decree in O.S.129/95 but make the father of the minor namely Radhakrishnan and the minors liable to reimburse Rs.7,500/- that had been received by them for the sale of the property with 6% interest from the date of suit. Therefore both the appeals are disposed of as follows. A.S. Nos.152 & 154 OF 2000 -15- 10. The judgment and decree passed in O.S.126/95 is confirmed and the plaintiff is given a decree for specific performance of the contract on deposit of balance consideration within a period of two months if not already deposited and defendant therein namely Bhavani Amma is directed to execute an assignment deed in favour of the plaintiff failing which the plaintiff can get documents registered through Court of law by invoking the provisions under the Specific Relief Act. 11. So far as O.S.129/95 is concerned the judgment and decree of the trial court are set aside and the decree for specific performance is refused but the plaintiff therein is given a decree for realisation of an amount of Rs.7,500/- with 6% interest on the said sum from the date of suit till realisation and the A.S. Nos.152 & 154 OF 2000 -16- defendants therein are bound to pay the same from their personal assets as well as the property. 12. I also make it clear that if there is no passage to 4.5 cents of land covered in O.S.129/95 a pathway having a width of 6 feet be provided to the defendants and that area be carved out and the price for that area be excluded from the purchase price in O.S.126/95. Parties are directed to bear the costs in both the suits. If the entire amount is deposited as stated above they can withdraw the amount which is in excess of the requirement. M.N. KRISHNAN, JUDGE. ul/- A.S. Nos.152 & 154 OF 2000 -17- M.N. KRISHNAN, J. = = = = = = = = = = A.S. Nos.152 & 154 OF 2000 = = = = = = = = = = = J U D G M E N T 10th August, 2010.