IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 AFA.No. 6 of 2000() ------------------- AS.272/1989 AND CROSS OBJECTION, HIGH COURT OF KERALA. OS.141/1982 of SUB COURT, OTTAPPALAM .................... APPELLANT: RESPONDENT NO.2 - DEFENDANT NO.2 --------------\ DR. A.P. SETHUMADHAVAN, S/O. AMBAT PALLIYALIL, LAKSHMIKUTTY AMMA, SURGEON, GOVERNMENT HOSPITAL, THANOOR POST - 676 302, MALAPPURAM DISTRICT, RESIDING AT TIRUR ROAD, POST THANOOR, MALAPPURAM DISTRICT. BY ADV. SRI.P.R.VENKETESH SRI.K.S.BHARATHAN RESPONDENT(S): ADDL. APPELLANTS 2 TO 4 & 1ST RESPONDENT - --------------- 1ST DEFENDANT. 1. C. MOHANADASAN, S/O. LATE PADMAVATHI AMMA, VILAYOOR VILLAGE, ETAPPALAM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. C. RAMADASAN, S/O. DO. DO. TEACHER, DO. DO. 3 C. PANKAJAKSHAN, S/O. DO. DO. 4 A.P. SAVITHRI AMMA, D/O. AMBAT PALLYALIL LAKSHMIKUTTY AMMA, VILAYOOR VILLAGE, ETAPPALAM DESOM, P.O. ETAPPALAM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.MATHEW JOHN SMT.PRABHA R.MENON SRI.N.C.JOSEPH SRI.SAIBY JOSE KIDANGOOR FOR R3 THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON 23/03/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P.S. GOPINATHAN, JJ. -------------------------------------------------- A.F.A. NO.6 of 2000 --------------------------------------------------- DATED:MARCH 23, 2009. JUDGMENT Raman, J. This is an appeal filed by the 2nd defendant against the judgment and decree passed by the learned Single Judge in A.S.No.272/1989. 2. The suit was one for specific performance instituted by Padmavathy Amma as plaintiff. The plaint schedule property forms an extent of 20 cents in Sy.No.168/4 in Ottapalam desom, Ottapalam Taluk was allotted to the 1st defendant in the family partition Ext.B1 dated 4.5.1981. The 1st defendant thereafter entered into an agreement for sale with the plaintiff as per Ext.A1 dated 7.7.1982 for the sale of the plaint schedule property for consideration of Rs.14750/- after paying an advance of Rs.5000/-. The time for registration was fixed upto 15.11.1982. According to the plaintiff she was ready and willing to perform her part of the contract, but the 1st defendant, fully aware of the legal obligation to complete the sale in terms of Ext.A1, sold the property to the 2nd defendant, her brother who was aware of the karar between the plaintiff and the 1st defendant. Though the plaintiff approached the 1st defendant requesting her to receive the balance sale consideration and execution A.F.A. NO.6 of 2000 :2: of the sale deed, she did not do so. Hence the suit for specific performance. 3. In the plaint it is also contended that the sale deed executed by the 1st defendant in favour of the 2nd defendant is a sham document without consideration and without bona fides and therefore not binding on the plaintiff or the property. The 2nd defendant is also not a bona fide purchaser without notice. Plaintiff is thus entitled to get the property sold to her as agreed under the contract and hence prayed for a decree directing the 1st defendant to execute the assignment deed in favour of the plaintiff on deposit of the balance consideration of Rs.9750/- and on failure to do so by the 1st defendant, to get the assignment deed executed through court. 4. The 1st defendant in her written statement admitted that an agreement was executed between the plaintiff and her to assign the plaint schedule property in favour of the plaintiff. But the agreement produced along with the plaint is not the one executed by the 1st defendant. The agreement executed by the 1st defendant was in the handwriting of her husband, but what is produced by the plaintiff is a concocted one and the plaintiff is not entitled for a decree for specific performance. At the time of the agreement, the defendant was not aware of all the terms in the partition deed and only later she realised that there is a stipulation in the partition deed entered into between the members of the A.F.A. NO.6 of 2000 :3: family that the tank in the plaint schedule property is to be used for irrigating the compound and to take bath for all the members of the tarwad. There is no other tank for use by women at the tarwad at the time of their menses period. After the agreement, the members of the family sent a registered notice stating that the 1st defendant has no right to sell the property, the 1st defendant sent a reply notice to the husband of the plaintiff believing that he is the person who agreed to purchase the property and intimated him of her difficulties in selling the property and requesting him to cancel the agreement. But that notice was returned stating that the address is not correct. Thereafter it was repeated in favour of the plaintiff. The plaintiff is not entitled for specific performance of the contract, that the defendant has assigned the property in favour of the 2nd defendant and prayed for dismissal of the suit. 5. The 2nd defendant filed a written statement adopting the contentions raised by the 1st defendant in her written statement and added to say that he is the bona fide purchaser for value. 6. As many as seven issues were raised for trial. The evidence consisted of the oral testimony of PW.1 and DW.1 and the decoumentary evidence Exts.A1 to A6, B1 to B6 and C1 and C2. 7. There was an ex parte decree passed against the defendants which was subsequently set aside as per I.A.No.695/1981 filed by the 2nd defendant. A contention was raised by the plaintiff that the ex parte decree was set aside only as A.F.A. NO.6 of 2000 :4: against the 2nd defendant and the decree as against the 1st defendant became final. Reliance was placed on the observation in the civil revision petition filed before this Court as CRP 63/1985 to contend that the decree was set aside only as against the 2nd defendant. However, the court below did not accept this contention and held that there is nothing to indicate in the order allowing IA 695/1989 to indicate that the decree was set aside only as against the 2nd defendant. As a matter of fact, after the ex parte decree was set aside, the plaintiff had preferred a civil revision petition before this Court, but it was dismissed by this court. Reference was also made to Order 9 Rule 13 CPC and the proviso thereto to hold that when there is any likelihood of conflicting decisions, the decree should be set aside against all the defendants. Subsequently an amendment was carried out in the written statement as allowed as per order in IA 1715/1987. There was a further revision to this Court as CRP 1858/1987 since the amendment was allowed only partly, and this court allowed the amendment as sought for and it was carried out and therefore it was held that the 2nd defendant is entitled to challenge the validity of the agreement and raise all the contentions available to the 1st defendant as well. On the question as to whether the agreement produced along with the plaint was signed by the 1st defendant, the trial court held that the existence of an agreement between the plaintiff and the 1st defendant is admitted and the only dispute is A.F.A. NO.6 of 2000 :5: as to whether Ext.A1 is that agreement or not. However, if there was any other agreement, the 1st defendant would have produced the same, but she did not do so. Further, the opinion of the handwriting expert is marked in this case as Ext.C2. For the purpose of considering the genuineness of Ext.A1, the court below considered the evidence of DW.1 and the document. According to the plaintiff who was examined as PW.1, Ext.A1 was executed by the 1st defendant in the handwriting of of Narayana Menon, husband of the 1st defendant. Exts.A6 and B1 are registered documents where the signature of the 1st defendant is seen. True, the name of the 1st defendant is written in Ext.A1 in English whereas in the other document it is written in Malayalam and signature is put in both these documents after the name. The court, on a comparison, found that the signature in Exts.A1, A6 and B1 are similar. The case of the plaintiff was that Ext.A1 was written in the handwriting of one Narayana Menon, the husband of the 1st defendant. The very same Narayana Menon has his name in Exts. A6 and B1 and the handwriting there and in Ext.A1 are found to be similar by the trial court. It is in addition to the above evidence that the opinion of the handwriting expert Ext.C2 which also shows that there is no discrepancy in the signature. It must be noticed that the opinion of the expert itself was obtained at the instance of the 2nd defendant. There was no evidence to doubt the correctness of the opinion rendered by the expert and further A.F.A. NO.6 of 2000 :6: there were other evidence in the case as discussed by the trial court and decided the issue holding that Ext.A1 is the agreement between the plaintiff and the 1st defendant and it is genuine. 8. Turning to the contention that the 2nd defendant is a bona fide purchaser, the trial court found that Ext.B4 which is the sale deed in favour of the 2nd defendant by the 1st defendant is admittedly after the agreement of sale, Ext.A1. The sale consideration for the property is fixed at Rs.14750/- whereas the sale consideration for executing Ext.B4 document by defendants 1 and 2 is only Rs.14000/- which is less than the sale consideration fixed under Ext.A1. The 2nd defendant in his written statement has pleaded that he had gone through the written statement of the 1st defendant and was adopting the same. While examined as DW.1 he deposed that when he purchased the property, the sisters were happy and thereafter there was no problem. He also contends that after he came to know about the karar made mention of in 1st defendant's written statement in paragraph 8, the 2nd defendant and also his sisters said that the property cannot be sold outside. The court below, after referring to this piece of evidence, came to the conclusion that absence of knowledge of Ext.A1 karar as pleaded by the 2nd defendant is not true. PW.1 categorically stated that the 2nd defendant had come to his house and wanted to cancel the agreement. DW.2, of course, had denied the same. The stamp paper for Ext.B4 was purchased, written and executed A.F.A. NO.6 of 2000 :7: on 3.8.1982 and it was on the same day that the plaintiff sent the notice to the 1st defendant demanding specific performance. The court below thus found that the plaintiff was ready and willing to perform her part of the contract, but it was the 1st defendant who refused to perform her part of the contract. But while considering as to whether a decree for specific performance should be granted in favour of the plaintiff in the exercise of the discretionary remedy, the court below found that it is as per Ext.B1 partition deed between the 1st defendant and other sisters and one brother, who is the 2nd defendant, that the plaint schedule property was allotted to the share of the 1st defendant. There is a family tank in the joint family property which is used for irrigation purposes of the entire garden, which tank is also used by the females for taking bath when they are in their menstrual period. Probably because the 1st defendant was residing away from the house and the plaintiff's house and the 1st defendant's house were close friends, the 1st defendant was prevailed upon to enter into an agreement. But, at the same time, the plaintiff's husband had some advantage because some other properties belonging to him were adjacent to the suit property. On coming to know of Ext.A1, the family members who were permanently residing in the family house protested. Since the property in question agreed to be sold takes in the tank and the rights as reserved for the other members to make use of the tank as per the partition deed, there is an A.F.A. NO.6 of 2000 :8: exclusive right conferred on the members of the family. Therefore, by granting specific performance, the right of the other members reserved for exclusive use of the tank will be violated and this is the only reason given by the trial court for declining to grant specific relief. However, alternate relief of return of the amount with interest was granted. A further amount of Rs.2000/- towards damages was also awarded. In appeal the learned Single Judge of this Court, however, reversed the decree to the extent it declined specific performance. The learned judge, in paragraph 6, considered the question whether the provision in the partition deed gives right to the other sharers to use the water in the pond situated in the property which was allotted to the 1st defendant as per the provisions of the partition deed and whether it is a ground for refusing to grant the discretionary remedy. He went on to hold that merely because it is lawful to do so, specific performance cannot be granted as held by the Apex Court in P.V.Joseph's son Mathew v. N. Kuruvila's son (AIR 1987 SC 2328) and also when specific performance cannot be granted if it results in unfair advantage to one party and hardship to the other. The principle underlying in those decisions relied on by the contesting defendants to show that in the light of the specific provision in the partition deed between the members of the family reserving exclusive right to use the tank by the family members and the sale of the property in favour of any third party would adversely affect A.F.A. NO.6 of 2000 :9: the exclusive user of the tank by the family members, as pointed out by the trial court. The learned Single Judge, however, held that merely because the properties are allotted as per a partition deed wherein right is also given to take water from the tank situated in the plaint schedule property and also to take bath in the pond, specific performance cannot be refused, and on that ground reversed the decree passed by the trial court and decreed the suit for specific performance. 9. The learned counsel appearing for the appellant strenuously contended before us that the judgment of the learned Single Judge is erroneous and the discretion has been wrongly exercised to grant a decree for specific performance. According to him, the sale of the property to a third party by the plaintiff will result in great hardship and inequity, to the members of the joint family who, by Ext.B1 partition deed, agreed to preserve the tank for common use by the family members for irrigation purposes also for taking bath by the female members during menstrual period. The use of the tank by any third party will therefore violate the terms of the agreement by the other family members. The 1st defendant who is also a member of the family and a party to the partition deed is therefore bound by this term and her act cannot deprive the right of exclusive user of the tank by the other members. We find force in this contention. But we have gone through the recitals contained in the partition deed and we also A.F.A. NO.6 of 2000 :10: agree with the appellant's counsel that the tank is kept in common for user by the members of the family. But the crucial point is that this tank is not forming part of the plaint schedule property. In other words, the tank is situated elsewhere in some other portion and the reservation of the tank for user by the members of the family will in no way be affected by the sale of the property in favour of a third party and it is not shown that the tank is situated in the plaint schedule property. It is also not shown that in the agreement for sale, the user of such right in the tank is the subject matter of Ext.A1 karar. If so, the ground which prevailed upon the trial court to deny specific performance and exercise of discretion in favour of the defendant is factually absent in this case. Therefore it has to be held for our own reason as stated above, that the conclusion reached by the learned Single Judge to grant a decree for specific performance is correct and that no grounds are proved to exist for denying the specific relief in favour of the plaintiff. It is also not shown that any other hardship will be caused to the defendant if specific performance is granted. 10. It is contended by the learned counsel appearing for the respondent that the 1st defendant, having remained ex parte without contest, must be deemed to have abandoned her right, if any, based on the contention raised in the written statement. The 2nd defendant, in such circumstances, who is the contesting party and the sole appellant, is not entitled to canvas the contentions as A.F.A. NO.6 of 2000 :11: are available to the 1st defendant alone. The karar Ext.A1 is between the plaintiff and the 1st defendant. If at all any equity consideration weigh with the 1st defendant, it is she who alone can claim any relief based on the equity and the 2nd defendant, who has purchased the property subsequently after Ext.A1 and who is not found to be a bona fide purchaser without notice, is not entitled to contend or claim any right of equity or seek the discretion being exercised in his favour. But we are unable to agree with this contention. The answer lies in the decision of the Apex Court in Vidhyadhar v. Manikrao and another - (1993) 3 SCC 573 wherein it was held by the Apex Court that a plea that the sale deed is void, fictitious or collusive can also be raised by a defendant who is a stranger to the sale deed and it will depend upon the pleading of the parties, nature of the suit, nature of the deed, evidence etc. The defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. Therefore, whatever contention available to the 1st defendant is available in the hands of the 2nd defendant as well since it is the 2nd defendant who really is the interested party and who alone will be affected if specific performance of the contract is granted. In other words, the 1st defendant having agreed to sell the property to the plaintiff and having sold the property to the 2nd defendant has proved her disinterest over the property to be retained. Therefore, merely because the 1st defendant did not A.F.A. NO.6 of 2000 :12: contest the matter, in the factual situation it cannot deprive the 2nd defendant any of the contentions which were available to the 1st defendant to be raised and proved. But, as we have already held, the only ground on which the relief of specific performance was declined by the court below, exercising the discretionary power was on a misconception as to the terms contained in the partition deed and on the misconception that the tank is situated in the plaint schedule property. On a true understanding of the terms contained in Ext.B1 partition deed and in the absence of any material placed on record to show that the tank in question is situated in the plaint schedule property, it has to be understood that the tank, though a joint family property belonging to the sharers, is reserved in common, but lies separately and not forming part of the plaint schedule property. 10. Next, it has to be considered whether, while exercising a discretion by the court under sec.20 of the Specific Relief Act, if the plaintiff has succeeded in proving her readiness and willingness to perform her part of the contract and the failure on the part of the 1st defendant (the vendor) to perform her part of the contract is proved and in the absence of any special circumstances to exercise the discretion and to decline the specific relief or in the absence of any equitable consideration in favour of the defendant, can the court still, under the guise of discretionary power, refuse to grant the specific relief. We need only look into the provisions contained A.F.A. NO.6 of 2000 :13: in sec.2 of the Specific Relief Act, as per which though the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but such discretion of the court is not to be exercised in an arbitrary fashion, but to be guided by reasons and principles judicially settled and capable of being corrected by the appellate court. It is specifically provided in sub-sec.(2) of sec.20 as to which are the cases in which the court can properly exercise discretion not to decree specific performance under clauses (a) to (c). As per clause (a) it must be shown that the plaintiff has got an unfair advantage over the defendant and as per clause (b) it is to be shown that if the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff, or under clause (c) it should be shown where the entering into the contract by the defendant is, in such circumstances, though not rendering the contract voidable, would make it inequitable to enforce specific performance. Clauses (a) and (b) is totally absent and clause (c) is also absent on facts as discussed above. The mere inadequacy of consideration or that the contract is onerous to the defendant or merely because it may cause some hardship on the defendant or that the specific performance of the contract is not enforceable at the instance of a party are no grounds on which such relief could be refused. It is equally true that specific A.F.A. NO.6 of 2000 :14: performance cannot be granted by the court merely because the contention of the defendant is either unsustainable or found not proved or false. It is also equally true that under sec.20, the circumstances specified thereunder are only illustrative and not exhaustive. But it is for the party who seeks equitable relief to refuse specific performance, to plead and prove the existence of any special reason or hardship and pray for the exercise of such discretion in favour of the defendant. The only reason put forth is the hardship that might be caused to the members of the family in the light of the specific provision contained in the partition deed which we have dealt with and found on fact that no such hardship will be caused. 11. Lastly, it is contended that during the pendency of the first appeal, the plaintiff died and her legal representatives were brought on record as respondents 1 to 3, of which the 3rd defendant had, by filing an affidavit, supports the contention of the 2nd defendant and asserted that the property belong to him only exclusively and favours the dismissal of the suit for specific performance. Merely because one of the legal representatives of the plaintiff had relinquished his claim for specific performance, that by itself will not deprive the other legal representatives to continue the proceedings stepping into the shoes of the plaintiff and to seek the relief prayed for. It must be remembered that the suit itself was laid by the father of respondents 1 to 3 and he A.F.A. NO.6 of 2000 :15: obtained a decree and, since only the alternate relief was granted, he filed an appeal therefrom and was contesting the matter all through. It is only during the pendency of the first appeal that he died and his legal representatives were brought on record. The first appellate