IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 RSA.No. 957 of 2004() -------------------------------- AS.NO. 44/1999 of II ADDL. DISTRICT COURT, PALAKKAD OS.NO. 156/1996 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFF. ------------------------------------------------------- VESU, D/O. KANDAPPAN EZHUTHASSAN, RESIDING AT PADINJARETHARA, MUDAPPALLUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH ( SENIOR ADVOCATE) BY ADVS. SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): RESPONDENTS/DEFENDANTS. ------------------------------------------------------------------------ 1. KAMALAKSHY, W/O. MADHAVAN. 2. VIJAYAN, S/O. MADHAVAN. 3. SUNDARAN, S/O. MADHAVAN. 4. SUDEVAN, S/O. MADHAVAN. 5. SAHADEVAN, S/O. MADHAVAN. 6. MINIMOL, D/O. MADHAVAN. 7. BABU, S/O. MADHAVAN. (ALL ARE RESIDING AT PADINJAREKADE, MUDAPPALLUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. R1 TO R7 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SRI.K.JAYAKUMAR SRI.HARISH R. MENON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/201, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - R.S.A No. 957 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2011 J U D G M E N T Plaintiff in O.S.No.156 of 1996 on the file of Munsiff Court, Alathur is the appellant. Defendants are the respondents. Suit was filed for specific performance of Exts.A1 and A3 agreements. The case of the appellant was that the plaint schedule property originally belonged to deceased Madhavan, husband of the first respondent and father of the other respondents. Under Ext.A1 agreement dated 17.05.1995 with the consent and knowledge of the other respondents, first respondent agreed to sell the plaint schedule property in favour of the appellant for a consideration of Rs.1,025/- per cent and on the date of the agreement Rs.30,000/- was received and agreed to execute a sale deed within six months. Though the sale deed was not executed before the expiry of the agreement, Ext.A3 agreement was executed on 28.06.2005, where under the respondents agreed to sell the plaint schedule property and Rs.5,000/- was additionally received as advance. In spite of, the demand to execute the sale deed under Ext.A5 notice, the sale deed was not executed. It was contended that the respondents are bound to execute the sale deed. R.S.A No. 957 of 2004 -2- 2. Only the respondent No.4 appeared and resisted the suit. In the written statement it was contended that at the time of execution of Ext.A3 agreement, respondents 5 to 7 were minors and they could not have executed an agreement and respondent No.4 has not executed the agreement and appellant is not entitled to the decree for specific performance of the agreement for sale. The fourth respondent in turn instituted O.S No.316 of 1996 along with minor respondents 6 and 7, for partition of the plaint schedule property contending that on the death of Madhavan it devolved on the widow and children and they are entitled to get their share separated. Both the suits were tried jointly. 3. Learned Munsiff on the evidence of PWs 1 and 2, Exts.A1 to A7, DW 1 and Exts.B1 to B5 dismissed O.S No.156 of 1996 and passed a preliminary decree for partition of the plaint schedule property in O.S No.316 of 1996. The learned Munsiff found that respondents 5 to 6 were minors at the time of execution of Ext.A3 agreement and, therefore, they are incompetent to execute the agreement. It was also found that the respondent No.4 did not execute Ext.A3, though his name was also shown and it was further found that appellant had not sought an alternative prayer for return of the advance amount and, therefore, appellant is not entitled to any relief of the agreement. R.S.A No. 957 of 2004 -3- Appellant did not challenge the judgment in O.S No.316 of 1996 and filed A.S No.44 of 1999 against the judgment in O.S No.156 of 1996 before the First Appellate Court. Appellant filed I.A No.1669 of 2003, an application under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint incorporating an alternative relief that in case it is found that appellant is not entitled to the specific performance of the agreement for sale, he is entitled to get refund of Rs.35,000/- paid under Ext.A3 agreement with interest. The learned Additional District Judge dismissed I.A No.1669 of 2003 on the ground that the appeal is not maintainable. First appeal was dismissed finding that as the judgment in O.S No.156 of 1996 is a common judgment of O.S No.369 of 1996 also and no appeal is filed against the judgment in O.S No.316 of 1996 and so, no appeal will lie. The second appeal is filed challenging the judgment. The appeal was admitted formulating the following substantial questions of law: “(1) Whether finding of first appellate court that suit for specific performance is not maintainable when appellant is entitled to a decree for specific performance of Ext.A3 agreement as against the executants of the agreement in terms of sub sections 2 to 4 of Section 12 of the Specific Relief Act, 1963. (2) Whether first appellate court was justified in dismissing the application for amendment of the plaint incorporating an alternate relief of realisation of the advance amount paid under Ext.A3 agreement.” R.S.A No. 957 of 2004 -4- 4. Learned counsel appearing for the appellant and the learned senior counsel appearing for the respondents were heard. 5. Though the trial court dismissed O.S No.156 of 1996 and granted a preliminary decree in O.S No.316 of 1996 by a common judgment, the findings in O.S No.156 of 1996 has noting to do with the findings in O.S No.316 of 1996. The question in O.S No.316 of 1996 is, whether the plaint schedule property is availed for partition and if partible the quantum of the sharers. The question in O.S No.156 of 1996 is, whether the appellant is entitled to get specific performance of Ext.A3 agreement for sale. The decision in O.S No.316 of 1996 does not effect the said question. Therefore, the first appellate court was not justified in dismissing the appeal on the ground that no appeal is filed against the judgment in O.S No.316 of 1996. Only if, any of the findings, which has become final by non filing the appeal in O.S No.316 of 1996 would operate as res judicata as against the contentions raised in O.S No.156 of 1996, it could be held that for non filing of an appeal against O.S No.316 of 1996, the appeal against O.S No.156 of 1996 alone is not maintainable. Admittedly, that is not the case. Hence the first appellate court erred in not disposing the first appeal on merits. R.S.A No. 957 of 2004 -5- 6. Though ordinarily the first appeal is to be remanded, as the first appellate court did not consider the appeal on merits, on the admitted facts and submissions of the counsel appearing for the appellant and the respondents, I did not find it necessary to remand the first appeal to the first appellate court. 7. The appellant is seeking specific performance of Ext.A3 agreement for sale. Ext.A1 agreement was executed earlier by the first respondent who agreed to sell the plaint schedule property belonging to all the respondents for the consideration fixed. An advance of Rs.3,000/- was received. The suit is not for specific performance of that agreement, as according to the appellant, Ext.A3 agreement was executed later on, where under all the respondents have agreed to sell the property. Ext.A3 agreement is seen to have executed by seven persons namely, the respondents. Admittedly, respondents 5 to 7 were minors, on the date of execution of Ext.A3. Hence, as rightly found by the courts below, respondents 5 to 7 are incompetent to enter into an agreement for sale. Therefore, the agreement is not enforceable as against them. 8. The courts below on the evidence found that the respondent No.4 has not executed Ext.A3 agreement. Ext.A3 shows that though the R.S.A No. 957 of 2004 -6- name of respondent No.4 was written, he has not signed in Ext.A3. Therefore, there could not be a decree of specific performance of Ext.A3 agreement, as against the respondent No.4 also. 9. Respondents 1 to 3 did not appear before trial court and did not contend that they did not execute the agreement. Appellant has no case that respondents 1 to 3 are liable to sell their respective shares in the plaint schedule property. Ext.A1 agreement is for sale of the entire plaint schedule property by all the respondents and not for sale of their respective shares by the respondents. Even in the application filed for amendment of the plaint before the first appellate court, no alternative relief of specific performance of the agreement as against respondents 1 to 3 alone was sought. It is in such circumstances, the courts below found that appellant is not entitled to a decree for specific performance even as against respondents 1 to 3. 10. As is clear from clause (ii) of Section 12(3) of the Specific Relief Act, appellant is not entitled to a decree as against respondents 1 to 3 alone, as he has not relinquished the remaining part of the agreement. Sub section (3) of Section 12 reads thus: (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- R.S.A No. 957 of 2004 -7- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), [pays or had paid] the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.” 11. Under Ext.A1 agreement, 1st respondent has agreed to sell the plaint schedule property at the rate of Rs.1,025/- per cent. When Ext.A3 was executed as if all the executants therein agreed to sell the plaint schedule property as agreed in Ext.A1. There was no agreement between the parties fixing the value of the share due to each of the executants. Therefore, based on Ext.A3 the value payable to each of the sharer cannot be determined. Hence, in any case there cannot be a direction to execute the sale deed by respondents 1 to 3 alone, even though, they did not appear and did not dispute the agreement for sale. R.S.A No. 957 of 2004 -8- 12. But that does not mean that the appellant is not entitled to get back the advance amount paid under Ext.A3 refunded. Ext.A3 shows that Rs.30,000/- was paid earlier under Ext.A1 and Rs.5,000/- was received by the executants before the execution of Ext.A3, making a total of Rs.35,000/-. Respondents 1 to 3 who executed Ext.A3 did not disputed the receipt of the amount. In such circumstances, as provided under proviso to sub section (2) of Section 22, appellant is entitled to a decree for return of the advance amount. It is admitted by both the counsel appearing for the parties that instead of remanding the suit back to the trial court or the first appellate court, the dispute be settled by this Court. Hence in the interest of justice the appeal is to be allowed in part to that extent. The judgment in A.S No.44 of 1999 on the file of District Court, Palakkad is set aside. O.S No.156 of 1996 on the file of Munsiff Court, Alathur stands decreed in part as follows: Respondents 1 to 3 are directed to pay Rs.35,000/- with interest at 6% per annum from 17.08.2004 to the appellant. Parties to bear their cost. Sd/- M.SASIDHARAN NAMBIAR JUDGE //TRUE COPY// P.A. TO JUDGE krj R.S.A No. 957 of 2004 -9-