IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 28.9.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal Nos.624 and 625 of 2009 and M.P.Nos.1 and 1 of 2009 1. Adilingam 2. Sankaralingam Appellants in both the appeals vs. 1. Narayanan 2. Boomilingam 3. Jambulingam 4. Jeyalakshmi 5. Lakshmi 6. Sagunthala Respondents in S.A.Nos.624 of 2009 1. Narayanan 2. Boomilingam 3. Jambulingam 4. Muthulakshmi 5. Jeyalakshmi 6. Lakshmi 7. Sundaram 8. Sagunthala Respondents in S.A.Nos.625 of 2009 For appellants : Mr.S.Parthasarathy, Senior Counsel for Mr.R.Nalliyappan For R1 : Mr.P.B.Balaji Prayer:- Second Appeals against the judgment and decree dated 30.10.2008 in A.S.Nos.28 and 27 of 2007 on the file of the Principal District Judge, Villupuram confirming the judgment and decree dated 30.3.2007 in O.S.No.102 of 1994 on the file of the Additional Sub Judge, Tindivanam. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT Defendants 2 and 4 are the appellants. 2. The first respondent filed the suit for specific performance of an agreement of sale dated 5.5.1993 executed by the father of the appellants and respondents 2 to 8 agreeing to sell the suit property at the rate of Rs.300/= per cent and received an advance of Rs.25,950/= and nine months time was fixed for payment of balance sale consideration of Rs.1,29,850/=. As the father of the appellant Mahalingam failed to execute the sale deed, the suit was filed by the first respondent for specific performance. The case of the first respondent was that the suit property belonged to Mahalingam, the deceased first defendant and it was his separate property and he agreed to sell the suit property for Rs.300/= per cent and received Rs.25,950/= and executed the agreement of sale dated 5.5.1993 and thereafter, he did not evince any interest and therefore, the first respondent issued notice dated 8.9.1993 calling upon the deceased first defendant to execute the sale deed on receipt of balance sale consideration and the deceased first defendant admitted the execution of the agreement of sale and sent a reply on 7.10.1993 stating that without consulting his sons, he had executed the agreement of sale and the properties are the joint family properties of himself and the sons and the sons are objecting to the same and requested the first respondent to cancel the agreement and get back the advance amount. 3. The first appellant and the second respondent sent reply stating that by practising fraud on their father, the agreement was obtained for a low price and the properties belong to them jointly and therefore, requested the first respondent to cancel the agreement and get back the advance. As the deceased first defendant failed to execute the sale deed, the suit was filed for specific performance. 4. The deceased first defendant died before filing written statement, and therefore, his legal representatives were added as defendants 2 to 10. The second defendant viz., the first appellant filed a statement stating that the property belong to them jointly and his father had no right to execute the agreement of sale in favour of the first respondent herein and they have not given consent for the sale and by practising fraud, the signature of the father was obtained by the first respondent with the help of one Palani Chettiar and he also stealthily obtained the original sale deed in favour of their father and the third defendant and the second respondent herein also filed the suit for partition in O.S.No.284 of 1994 and as such, the first respondent/plaintiff is not entitled to the relief of specific performance. https://hcservices.ecourts.gov.in/hcservices/ 5. The fifth defendant also filed statement stating that he was lured by Palani Chettiar and at his instance, he also helped his father to enter into the agreement of sale with the first respondent without knowing the mala fide intention of the first respondent/plaintiff and therefore, the sale agreement is not valid and the first respondent/plaintiff is not entitled to the relief prayed for. 6. The present appellants, who were defendants 2 and 4 remained ex parte in the suit and the suit was contested by defendants 3, 5 and 7. 7. The Trial Court held that the property was the separate property of the deceased first defendant Mahalingam and it was not the joint family property of Mahalingam and his sons and that Mahalingam entered into the agreement of sale voluntarily and no fraud has been practised upon him and considering the price hike, he wanted to rescind from the agreement of sale and issued reply notice and the first respondent proved his readiness and willingness to proceed with the agreement of sale and decreed the suit as prayed for. Nevertheless the Trial Court did not award cost to the first respondent. Therefore, the first respondent filed A.S.No.27 of 2007 against the judgment and decree insofar as the cost is concerned and defendants 2 to 5, and 7, 8 and 10 filed A.S.No.28 of 2007 against the judgment and decree granted in favour of the first respondent. The first appellate court also independently appreciated the facts and law and confirmed the judgment of the Trial Court insofar as the specific performance of the agreement of sale and allowed the appeal filed by the first respondent and awarded cost. Hence, these two second appeals. 8. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants submitted that having regard to the recital in the agreement of sale, viz., in the event of breach committed by the deceased first defendant, the first respondent can treat the agreement of sale as sale deed and deposit the balance sale consideration into court and apply for compulsory registration, admittedly, the first respondent did not act according to the terms of the agreement of sale by depositing the balance sale consideration as stipulated in the agreement and hence, he has committed breach of condition and therefore, he is not entitled to the relief of specific performance. In support of his contention, he relied upon the decision in R.RAJRAM v. T.R.MAHESWARAN ((2010) 2 MLJ 253). The learned Senior Counsel further submitted that both the courts below erred in holding that the suit property was the separate property of the deceased first defendant Mahalingam, without properly appreciating the evidence of DW1 to DW3 and even assuming that the suit property was the separate property of Mahalingam, the said Mahalingam, deceased first defendant sent a reply notice in October 1993 informing https://hcservices.ecourts.gov.in/hcservices/ the first respondent that his sons are objecting to the agreement of sale and requested the first respondent/plaintiff to cancel the agreement and receive the advance amount and his two sons had also sent a reply stating that fraud has been practised upon their father in getting the agreement of sale and the properties are the joint family properties of father and sons and therefore, the father cannot execute the agreement of sale in favour of the first respondent and despite the same, the first respondent did not file the suit immediately and he filed it only on 24.9.1994 and that would show that he was not ready and willing to perform his part of the contract and therefore, the suit is liable to be rejected. 9. On the other hand, Mr.P.B.Balaji, learned counsel for the first respondent submitted that both the courts have elaborately appreciated the evidence and rightly held that the property was the separate property of Mahalingam, the first defendant and he also admitted the execution of the agreement of sale and without causing any delay, the suit was filed and therefore, both the courts have rightly exercised the discretion and granted the relief and the concurring findings of fact need not be interfered with in the second appeal. 10. On the above pleadings, the following substantial questions of law arise for consideration in the second appeal:- "1. Whether the first respondent has committed breach of conditions in the agreement of sale and therefore, he is not entitled to the relief of specific performance? 2. Whether the first respondent was ready and willing to perform his part of the contract?" 11. Learned Senior Counsel Mr.S.Parthasarathy relied upon the judgment reported in (2010) 2 MLJ 253 and submitted that in a similar circumstance, this court has held that when the plaintiff did not deposit the amount, he has committed breach of condition and therefore, he is not entitled to the discretionary relief of specific performance. 12. I am unable to accept the contention of the learned Senior Counsel. In the above judgment, this court has considered a clause in the agreement of sale by which the agreement holder was directed to deposit the balance sale consideration before the court and to file the suit for specific performance, in the event of failure on the part of the executant to execute the sale deed. In that circumstance, the learned Judge held that while filing the suit for specific performance, the plaintiff did not deposit the balance sale consideration as https://hcservices.ecourts.gov.in/hcservices/ stipulated in the agreement and depositing of balance sale consideration before filing the suit for specific performance was a condition precedent as per the agreement and the plaintiff viz., the agreement holder in that suit failed to deposit the amount and therefore, he committed breach of contract and therefore, he is not entitled to the relief of specific performance. In this case, the recitals are not identical and as stated supra, it was only stated that in the event of failure on the part of the deceased first defendant in executing the sale deed, the agreement holder shall deposit the amount before the court and treat the agreement of sale as sale deed and apply for compulsory registration. Therefore, the wordings in both the agreements are different and in the agreement which was the subject matter of the judgment reported in (2010) 2 MLJ 253, the agreement holder was directed to deposit the amount in court and file the suit for specific performance. In the circumstances, the learned Judge held that the condition was prescribed under the agreement of sale and that condition was not complied with and therefore, the agreement holder is not entitled to the relief of specific performance. But, in this case, there was no such condition that before filing the suit for specific performance, the first respondent/plaintiff has to deposit the amount. It was only stated that the first respondent/plaintiff shall deposit the amount and treat the agreement of sale as sale deed and apply for compulsory registration. 13. It is well known that the agreement of sale cannot be treated as a sale and the plaintiff/first respondent cannot apply for compulsory registration as per the condition stated in the agreement of sale. He has to file the suit for specific performance for enforcing the agreement of sale. Hence, the condition stated therein cannot be construed as a condition precedent for enforcing the agreement of sale. 14. Further, it is also against the provisions of section 16(c) and the explanation attached to that section. As per section 16(c) of the Specific Relief Act, where a contract involves payment of the money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. Therefore, the section specifically says that there is no necessity on the part of the plaintiff, who sues for specific performance, to deposit the amount into court and it is the well known proposition that no one can enter into an agreement against the statute. When the statute does not prescribe or does not compel a person to deposit the balance sale consideration before filing a suit for specific performance, even though there is a clause in the agreement of sale that the party, who applies for specific performance, has to deposit the amount in court, there is no necessity on the part of the party to deposit the amount and if he is https://hcservices.ecourts.gov.in/hcservices/ capable of proving that he has got the means to pay the balance sale consideration, that is sufficient and there is no necessity on the part of the plaintiff, who files the suit for specific performance, to deposit the amount. 15. Therefore, as per the explanation to section 16(2) of the Specific Relief Act, the plaintiff/first respondent is not obliged to deposit the amount before filing the suit for specific performance and this aspect was not properly appreciated by the learned Judge in the judgment reported in (2010) 2 MLJ 253. Therefore, the failure to deposit the amount before the court before filing the suit for specific performance will not disentitle the first respondent from claiming the suit for specific performance and the condition stated in the agreement of sale cannot be enforced in a suit for specific performance as section 16(c) and the explanation attached to that section does not require the person to deposit the amount before filing the suit for specific performance. Hence, the first respondent has not committed any breach and the first substantial question law is answered against the appellant and in favour of the first respondent. 16. Both the courts below concurrently held that the property was the separate property of the first defendant and he entered into the agreement of sale and the first respondent also proved his readiness and willingness to perform his part of the contract. In Ex.A4, reply sent by the first defendant, he admitted the execution of the agreement of sale and he only stated that he did not consult his sons before entering into the agreement of sale and therefore, the advance may be obtained from him and the agreement may be cancelled. 17. In Ex.A3, notice sent by one of his sons, it was also admitted that the agreement of sale was executed and by practising fraud, it was obtained. Both the courts have clearly held that when the property was purchased in the year 1956, the second defendant was aged four years and the third defendant was born in the same year and therefore, it could not have been purchased by the joint earnings as stated in the written statement. Further, two other sons of the deceased first defendant viz., Jambulingam and Sankaralingam also admitted the agreement of sale and the second appellant though admitted the agreement of sale, has filed the appeal stating that the agreement of sale was obtained by fraud. Therefore, when the property was the separate property of the deceased first defendant, he was competent to enter into the agreement of sale and also admitted the execution of sale and his only objection was that the adjacent lands were sold for higher price and therefore, his sons are objecting to the sale of the property. https://hcservices.ecourts.gov.in/hcservices/ 18. As per the agreement of sale, nine months time was fixed in the agreement of sale dated 5.5.1993 and after issuing notice on 8.9.1993, followed by another notice dated 9.9.1993, the suit was filed on 24.9.1994 and the first respondent also averred in the plaint about the readiness and willingness and therefore, he proved his readiness and willingness by entering into the box and also proved the execution of the agreement by examining P.Ws.2 and 3 and DW1, the second defendant also admitted in cross-examination that the agreement of sale was executed by his father and considering all these aspects, both the courts below have rightly held that the agreement of sale was executed by the deceased first defendant and it was his separate property and the first respondent was ready and willing to perform his part of the contract and decreed the suit. Hence, I do not find any infirmity in the findings of the courts below relating the readiness and willingness on the part of the first respondent/plaintiff. Hence, both the courts below have rightly held that the first respondent is entitled to the relief of specific performance and granted the decree and I do not find any reason to interfere with the concurrent findings of the courts below. The second substantial question of law is also answered against the appellant. 19. When a suit for specific performance is decreed holding that the plaintiff was ready and willing to perform his part of the contract and he has not committed any breach, as a natural corollary, he must be awarded cost, but, without assigning any reason, the Trial Court declined to award cost to the first respondent/plaintiff and the mistake was rectified by the first appellate court and the first appellate court has awarded cost thereon and I do not find any reason to interfere with the judgment and decree of the first appellate court in awarding cost to the first respondent/plaintiff. In the result, both the second appeals are dismissed and the judgment of the Trial Court relating to specific performance and the judgment and decree of the first appellate court regarding cost are confirmed. There is no order as to costs in the second appeal. The connected miscellaneous petitions are also dismissed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To 1. The Principal District Judge, Villupuram. 2. The Additional Sub Judge, Tindivanam. +1cc M/s.P.B.Ramanujam, Advocate Sr 6027 +1cc to M/s. R.Nalliyappan, Advocate Sr 61057 NR(CO) km/14.10. S.A.Nos.624 and 625 of 2009 https://hcservices.ecourts.gov.in/hcservices/